Recent Articleshttp://prospect.org/authors/126315/rss.xml
The American Prospect - articles by authorenProgressive California: The Long Road Backhttp://prospect.org/article/progressive-california-long-road-back-0
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p align="left"><em>This article appears in the Winter 2016 issue of </em>The American Prospect <em>magazine</em>. <a href="https://ssl.palmcoastd.com/21402/apps/ORDOPTION1LANDING?ikey=I**EF1">Subscribe here</a>.</p>
<p align="left"><span class="dropcap">S</span>een from Washington or New York, California looks like a brilliant fiscal success, even without comparing it with the Republican moronarchy in Washington, the budget disasters of Sam Brownback’s tax-cutting Kansas or Bobby Jindal’s Louisiana, or the scandalous budgetary finagling that’s earned Chris Christie’s New Jersey the second-lowest credit rating in the nation. </p>
<p>In 2012, California voters, with a strong push from Governor Jerry Brown, passed Proposition 30, which raised the sales-tax rate and created a new bracket for the highest-income taxpayers. For those making more than $1 million, the marginal rate is now 13.3 percent, making California’s tax structure far and away the most progressive of any state in the nation.</p>
<p>And despite dire warnings from the right, there has been no great exodus of California millionaires rushing for cover in Texas, Arizona, or other low-tax states. California, moreover, has regained a significantly larger percentage of the jobs lost in the 2008–2009 recession than the nation as a whole. The state’s unemployment rate, at 5.8 percent as of October 2015, is still higher than the nation’s 5.0 percent, but less than half what it was in 2008.</p>
<p>A year before Proposition 30 passed, Brown, ending a long and nasty battle with Amazon, had also negotiated and signed the so-called Amazon law, which, like those in a dozen other states, requires big Internet retailers to collect sales taxes on their California sales just as the brick-and-mortar stores on Main Street had long been required to do. In 2010, voters had also approved an initiative that ended California’s constitutional requirement, one of the few in the nation, that state budgets may only be passed by a two-thirds vote of the legislature. The majority-vote rule that replaced it thus ended decades of filibuster-like budget battles. One veteran liberal activist, Lenny Goldberg of the California Tax Reform Association, says that in California even the Republicans have become “pretty reasonable.”</p>
<p>Now, as Kansas and other tax-cutting states are starving education and social services, California’s tax increases are generating an additional $6 billion to $7 billion a year, most of it for the K-12 schools. The Golden State, famously enmeshed in budgetary impasses a few years before, inflicting major cutbacks on needed public programs, is for the moment again celebrated as the nation’s shining example of progressive public policies. Until recently, there had even been talk about the 77-year-old Brown again running for president.</p>
<div class="right-margin">
<div class="image image-large">
<div class="field-image"><img src="http://prospect.org/sites/default/files/styles/large/public/ap551315392059.jpg?itok=l1v7Xicv" alt="" title="" /></div>
<div class="field field-name-field-credit field-type-text field-label-hidden">
<div class="field-items">
<div class="field-item even">AP Photo/Reed Saxon</div>
</div>
</div>
<div class="field field-name-body field-type-text-with-summary field-label-hidden">
<div class="field-items">
<div class="field-item even">
<p>California Governor Jerry Brown appears at a rally for precinct walkers from the Service Employees International Union (SEIU), urging they go all out in support of Proposition 30, in downtown Los Angeles Saturday, November 3, 2012.</p>
</div>
</div>
</div>
</div>
</div>
<p>But let’s not overdo it. California’s tax system—indeed its whole fiscal structure—is still a dysfunctional mess, nearly as illogical, inequitable, and inefficient as it has been for the previous 40 years. The tax limits and the restrictions on government imposed by Proposition 13, the sweeping property-tax reduction and limitation initiative passed by voters during the great tax revolt that began in 1978, are still on the books, and, according to the polls, as beloved by voters as ever.</p>
<p>Despite the infusion of the new money coming from the state’s high-tech-driven economic recovery and the taxes generated by Proposition 30, California is still struggling to get its per-pupil spending up to the national average. In March 2015, the state was 29th in the nation, about $975 below the national average. It charges some 20 times as much in higher-education tuition and fees as it did 40 years ago—more than $13,000 a year for in-state students, versus $647 in 1975–1976. Students now pay more in tuition than the state contributes to university support.</p>
<p>Nearly all states have jacked up tuition at their public universities. But when Berkeley and UCLA, like the universities of Michigan and Virginia, begin to skew their admissions policies toward out-of-state students, who pay vastly more than others, and become increasingly privatized institutions, the blow to talented in-state applicants and to the very idea of high-quality public education is especially painful. No state had once prided itself more on its essentially tuition-free system of higher education than California had. Privately, Berkeley faculty members concede that they now have an increasingly hard time competing for the hottest faculty prospects with Stanford, the Ivies, and other better-endowed private institutions. Berkeley has an official student-faculty ratio of 17 to 1; Stanford’s is either 4 to 1 or 11 to 1, depending on whose numbers you use.</p>
<p> </p>
<p><strong>THE LIST OF PROPOSITION 13's CASUALTIES </strong>goes on: The condition of California’s roads, once models for the world, is rated as among the worst in the nation. Its huge public-employee pension funds and retiree health-care systems are dangerously underfunded. A few months ago, the Public Policy Institute of California estimated that unfunded liabilities for the state’s future public-employee retirees had reached “historic levels”—roughly $135 billion—which, if not addressed, would consume an increasing share of state and local budgets, money that would be needed for current purposes, not to support the employees of the past.</p>
<p>(Those pension shortfalls, too, are partly attributable to the effects of Proposition 13: In tight years when there was no money for public-employee pay raises, cities, counties, and school districts would appease cops, firefighters, and teachers with generous, though unfunded, retirement commitments.)</p>
<p>Worse, the crippling restrictions on state and local governments that Proposition 13 imposed in 1978 and the resulting distortions in the state’s tax burden remain firmly locked into the California constitution. Local governments can’t impose a parcel tax on property—a tax where each piece of property, whether mansion or hovel, pays the same tax, as opposed to ad-valorem taxes based on the value of the property—without a two-thirds vote of the local electorate. They can’t raise the ad-valorem property-tax rate at all. That means that Californians, in the words of California Forward, a nonpartisan think tank, “do not have an effective mechanism to channel local citizens’ enthusiasm for local schools,” which before the passage of Proposition 13 were largely funded by local property taxes, and have since been supported by money from the state. Nor can the legislature increase sales or income taxes without a two-thirds vote. On revenue issues in the California legislature, the minority rules.</p>
<p><span class="pullquote">Because Proposition 13 doesn’t allow property to be reassessed except when ownership changes, it creates huge inequities.</span> Neighboring residents pay vastly different property-tax bills on identical homes, depending on when they bought those homes.</p>
<p>Similarly, Proposition 13 stifles business competition: The longtime retailer on Main Street is assessed according to what he paid in 1975 before Proposition 13 was passed, or whenever he bought or built his store in the years since; his new would-be competitor next door pays for an identical building on the basis of the elevated prices of the contemporary market.</p>
<p>That, as Goldberg points out, turns all the principles of good economics on their head. The system doesn’t capture gains in the value of a successful business or the increased value of the property next door; instead, it penalizes innovation and new enterprise. And since it doesn’t raise the assessment of unused parcels adjacent to successful businesses, it fosters speculation and does nothing to encourage the highest and best use of those parcels.</p>
<p>Worse, because the provisions of Proposition 13 on changes of ownership have allowed corporate lawyers to find great loopholes for commercial property transactions, usually through lease arrangements (rather than outright purchases) on blatantly under-assessed land, the initiative, purportedly designed to protect homeowners, has generated a huge shift of the tax burden from commercial to residential property. In 1978, homeowners paid 55 percent of property taxes; today, they pay 72 percent.</p>
<p>It has also distorted local planning priorities. For many years, property taxes on manufacturing plants didn’t generate as much revenue as sales taxes were thought to generate from retail developments on the same land. As a result, until about a decade ago, there were intense beggar-thy-neighbor battles between adjacent communities for shopping malls and auto malls, but little interest in clean industry and the much better-paying jobs it would bring. Now, after some locals bent over backward and spent millions to build infrastructure to attract the shopping malls, some of those malls have been going bust.</p>
<div class="right-margin">
<div class="image image-large">
<div class="field-image"><img src="http://prospect.org/sites/default/files/styles/large/public/ap780719018.jpg?itok=v6lkUivD" alt="" title="" /></div>
<div class="field field-name-field-credit field-type-text field-label-hidden">
<div class="field-items">
<div class="field-item even">AP Photo/Robbins</div>
</div>
</div>
<div class="field field-name-body field-type-text-with-summary field-label-hidden">
<div class="field-items">
<div class="field-item even">
<p><strong>The Old Jerry, at his worst:</strong> Governor Jerry Brown with Howard Jarvis in 1978, espousing extreme fiscal austerity in the wake of Proposition 13's enactment. </p>
</div>
</div>
</div>
</div>
</div>
<p><strong>GOLDBERG OF THE CALIFORNIA TAX REFORM ASSOCIATION </strong>has long been working to promote a change to Proposition 13 that would require commercial property, but not residential property, to be reassessed periodically according to its current value, regardless of changes of ownership. He points out that in fact majority ownership of corporations, as shares of stock are bought and sold, probably changes every three years. Some legislators and a group of liberal organizations and policy experts, under the slogan “Make It Fair,” have been working on legislation to enact that change, which would pin commercial property assessments to current values.</p>
<p>But the prospects for enacting this kind of reform aren’t great. The most recent poll, from the Public Policy Institute of California in September 2015, shows voters narrowly favoring such an initiative (51 percent to 42 percent), but corporate and anti-tax groups almost always beat this kind of measure. Not surprisingly, Brown has shown no enthusiasm for it. He called it “a tar baby,” something he doesn’t want to get entangled in. Brown, who in any case never lost his high Jesuitical regard for austerity and the morally salutary effects of hair shirts, doesn’t like involving himself in long shots.</p>
<p>For similar reasons, Brown has no enthusiasm for extending Proposition 30’s high-end income-tax rate, which expires in 2018. He’d promised it would be temporary when it was on the ballot in 2012, and he seems intent on sticking to that. A coalition of public-employee unions has launched a campaign to extend it, and while the PPIC poll cited above shows voters favor the extension by 55 percent to 37 percent, that lead is also likely to evaporate if the issue goes on the ballot.</p>
<p>There are valid reasons other than Brownian austerity for the governor’s reluctance to support any extension of Proposition 30’s upper-income brackets. <span class="pullquote">Because of Proposition 13’s caps on local property taxes, the state and local governments have become heavily dependent on California’s progressive but highly volatile income-tax system.</span> In good times, the income tax on high earners generates ample revenue, much of it from capital gains. But in lean times, state revenues drop precipitously, producing the wild boom-and-bust swings from which California’s revenues have famously suffered for more than three decades.</p>
<p>Bruce Cain and Roger Noll of Stanford, the former a political scientist, the other an economist, pointed that out some years ago: California, more than other states, relies disproportionately on the income tax. The state generates the revenue through the income tax, then transfers most of it to the locals, who spend it on schools, health care, public safety, and other major services. (This leads, they argue, “to a lack of clear accountability for the state’s recurring fiscal crisis.” Is the problem poor fiscal management by the locals or by the state? Or, more broadly, is the problem rooted in what’s often called “ballot-box budgeting,” the programs created by initiative—tougher prison sentencing laws, for example—for which the voters don’t provide the needed additional revenues?)</p>
<p>Conservatives blame California’s high upper-bracket rates for the volatility of its revenues. But just as plausibly, the revenue swings can be pinned to the lack of sufficient property-tax revenues, which are far more reliable and less dependent on the business cycle and thus serve as a kind of flywheel through the economic cycles. </p>
<p>So might an economically more rational sales-tax system that would tax major services—lawyers, accountants, business consultants, data processing—just as it now taxes the sale of cars and washing machines. The share of the economy generated by services is now much greater than the share generated by the sale of goods, and it continues to grow.</p>
<p>State Senator Bob Hertzberg, a Los Angeles Democrat and a former speaker of the state assembly, is pushing such a reform, combined with a reduced reliance on the income tax, which he believes would significantly reduce the boom-and-bust swings in state revenues. Hertzberg says many states tax some combination of services. Still, given the polls, the bill’s chances of eventually passing look slim. And in combining the sales-tax measure with the income-tax cut, obviously designed to draw voter support for the sales-tax measure, Hertzberg’s proposal might do little but exacerbate the effects of the state’s huge income gaps.</p>
<p>In November 2014, California voters passed the Rainy Day Budget Stabilization Fund Act, requiring the state to set aside a small percentage of boom-time revenues in a reserve account, which will soften the effects of the downturns, but in tight times for not much more than a year.</p>
<p>Add all that up and you get a glimpse of the governmental and fiscal messes that Proposition 13 and its plebiscitary progeny have generated. In poll after poll, however, voters say they trust the initiative process more than they trust government. That’s hardly surprising, given the vicious cycle in which every ballot measure further constrains all branches of government, limiting their ability to raise funds and allocate them to meet the most pressing needs and most important projects. The reforms of the past four or five years have put a dent in that process—but only a dent.</p>
<p> </p>
<p><strong>FOR ANYONE LOOKING TO CALIFORNIA </strong>for encouragement about the future, probably the most positive signs—and they are significant—are social and demographic.</p>
<p><span class="pullquote">In 1994, California voters overwhelmingly approved Proposition 187, sponsored by Governor Pete Wilson and other Republicans, one of the harshest anti-immigrant measures in modern American history.</span> Until federal courts struck it down, it excluded undocumented immigrants, including young children, from the public schools and virtually all other public services, and it required teachers, nurses, cops, and other public employees to report to the authorities anyone believed to be here illegally. Two years later, voters also approved Proposition 209, which prohibited affirmative action in public education, contracting, and employment, an initiative that became a model for Michigan, Washington, and five other states. </p>
<p>But by 2010, when Arizona passed its notorious S.B. 1070 with its long list of anti-immigrant measures, California had become a majority-minority state and firmly Democratic in party registration, in part because of the Latino backlash against Proposition 187. It now charges undocumented immigrants the same tuition as all other in-state students in its public colleges, and makes them eligible for financial aid. After a decade of political battles, the state now issues driver’s licenses to undocumented immigrants. California continues to lead the nation in environmental regulation. </p>
<p>Meanwhile, Jerry Brown—who in his first terms as governor (1975–1983) had looked down on and sometimes outright disparaged his governor-father Pat Brown’s progressive public projects in water, transportation, and education—has been pushing his own multibillion-dollar plan to build a European-style bullet train from San Francisco to Los Angeles, and his own immense construction scheme to move more water from one end of the state to the other.</p>
<div class="right-margin">
<div class="image image-large">
<div class="field-image"><img src="http://prospect.org/sites/default/files/styles/large/public/ap320901737429.jpg?itok=C0p0jN1w" alt="" title="" /></div>
<div class="field field-name-field-credit field-type-text field-label-hidden">
<div class="field-items">
<div class="field-item even">AP Photo/Jeff Chiu, Pool</div>
</div>
</div>
<div class="field field-name-body field-type-text-with-summary field-label-hidden">
<div class="field-items">
<div class="field-item even">
<p><strong>The New Jerry, at his most visionary: </strong>With Japanese Prime Minister Shinzo Abe in San Francisco in April 2015. </p>
</div>
</div>
</div>
</div>
</div>
<p>There are serious doubts about each, and fierce resistance from many quarters to both, so that the chances that both would be finished within the next quarter of a century, if ever, are slim. But for those who recall the (sometimes unjustifiably excessive) optimism of the postwar decades, even the hope of doing something so grand and ambitious has been refreshing.</p>
<p>Perhaps because of its sheer size, its ethnic and social diversity, and its economic heft—the eighth-largest economy in the world, as some Californians like to remind themselves—California’s ups and downs have always been magnified by outsiders. Californians themselves have often encouraged this. Things had better work here, Joan Didion famously said long ago, because this is where we run out of continent. And in our treatment of a diverse and ever-changing population, California is, one hopes, a precursor of, and maybe a model for, the rest of the nation.</p>
<p>But on tax reform—by whatever definition—California’s baby steps have barely moved the state out from under the shadow of Proposition 13 and its other tax-limitation follow-ups. They have not broken through most of the crippling restrictions on state and local government action or restored the progressive communitarian ethic that grew out of the Depression and the common effort of World War II.</p>
<p>And because of the economic and cultural tribalism fostered by the Internet, the cell phone, and their associated technologies, we may never get it back. Democrats dominate the politics of California, in large measure because of the Republicans’ long disregard of the state’s ethnic minorities and their disdain for gender and other major social issues. But the state’s dominant streak has been individualistic and libertarian, not New Deal–progressive. With the increasing presence of Latinos in the electorate, that may be starting to change, but it hasn’t yet. Next to the California of a half-century ago, today’s tax policy and political culture still look depressingly backward. Compared with those of other states today, however, they look like a shining example. </p>
</div></div></div>Mon, 15 Feb 2016 19:15:05 +0000224122 at http://prospect.orgPeter SchragBush's Education Fraudhttp://prospect.org/article/bushs-education-fraud
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p>Well before he became president, George W. Bush had made his education plan, the No Child Left Behind Act, the showcase of "compassionate conservatism" -- meaning, in the conventional shorthand, a conservative route to liberal ends. Its objective was to force schools to close the huge racial achievement gaps in American education, to pay attention to the poor and minority kids they had so often neglected, and to make every child "proficient" in reading and math by the year 2014. The law's name itself was a rip-off of "Leave No Child Behind," the longtime rallying cry of Marian Wright Edelman's Children's Defense Fund. When Bush signed the legislation in January 2002, two liberal Democrats, Massachusetts Sen. Edward Kennedy and California Rep. George Miller, were the co-stars of the White House photo-op.</p>
<p>
But in the past two years, No Child Left Behind (NCLB) -- formally just an extension of the Johnson-era Elementary and Secondary Education Act of 1965, but in practice probably the most sweeping nationalization of school policy in the nation's history -- has left a lot behind, including no end of confusion, uncertainty and resentment. </p>
<p>
The law itself, the administration's failure to fund it as promised, and the uneven and sometimes incomprehensible way it's been managed by the U.S. Department of Education have begun to generate so many difficulties and so much backlash, particularly among state legislators, that the program could well implode and take down two decades of state educational reforms with it. In the process, it would also end the best hope -- all the law's difficulties notwithstanding -- that America's poor and minority children have for getting better schools, higher standards and the attention they deserve.</p>
<p>
The law's basic objectives were simple: </p>
<p>
• Create an accountability system of tests, graduation rates, and other indicators that would force individual schools and districts to make adequate yearly progress by raising not only school-wide test scores but the achievement levels of every major subgroup of students -- African Americans, Latinos, English-language learners, low-income students, special-education students -- to a state-defined level of proficiency. Schools that don't make such progress two years running for each group in each subject and grade are to go into "Program Improvement," which triggers an escalating set of sanctions and "interventions," ultimately including a state takeover until the school again makes its adequate yearly progress targets.</p>
<p>
• Require schools and districts to issue annual "report cards," which would provide data on the performance and quality of each school. Children in low-performing schools would be allowed to transfer to better schools (for which the district must provide transportation), and extra help would be provided for those who needed it. At heart, it meant that kids wouldn't remain trapped in the nation's most horrible schools. Bush wanted private-school vouchers; the public-school transfer provision is what he got. </p>
<p>
• Provide the necessary resources, including "highly qualified teachers," in every classroom by 2005-06. To fund those reforms, Bush agreed to a 27 percent boost in Elementary and Second Education Act funding, to $22 billion in the first year and more in the years thereafter. </p>
<p>
All told, it was an agenda that seemed as noble as it was political. </p>
<p>
But the law wasn't simple, and because its provisions were often laid on top of various state testing and accountability systems, it made things more complicated still. California, for instance, already reported each year's test scores in grades 2-11, scores on its high-school exit exam and each school's test-based Academic Performance Index. In addition, there are the periodically reported state breakdowns of scores on the National Assessment of Educational Progress, and the national sampling of educational achievement in major subjects, sometimes called "the nation's report card." </p>
<p>
NCLB now also requires annual reporting of adequate yearly progress, plus an alphabet soup of other goals and criteria. As a consequence, parents and the public in many states receive a torrent of numbers purportedly rating school performance, few of them entirely consistent with the others and many wildly different. As Michael Cohen, who heads Achieve Inc., a business-backed group promoting higher school standards, told <i>Education Week</i>, there's "massive confusion, owing to the stapling together of state and federal accountability systems, and pretending we have one system."</p>
<p>
To make things more confusing still, in the tortured political compromises between national requirements and state prerogatives that Congress was forced to make to pass the bill, it produced a law that was at once too rigid and meaninglessly flexible. It required schools to ensure that <i>every</i> student achieve "proficiency," yet it allowed the states to set their own proficiency standards and, within general limits -- a four-year undergraduate degree, a teaching credential, subject matter knowledge -- to write their own definitions of what makes a highly qualified teacher. Thus, while Michigan reported that some 1,500 schools (40 percent of all the state's public ones) failed to make their adequate yearly progress goals in 2000-01, Arkansas and Wyoming, with lower proficiency standards, reported none. And while some states reported that more than half their teachers weren't highly qualified -- Utah reported last year that only about a third of its teachers were "fully highly qualified" -- others declared that every teacher in every classroom was. And because NCLB imposes costly remedial requirements on districts with large numbers of what are officially called underperforming schools, it creates strong incentives for states with high standards to lower them. </p>
<p>
What makes those incentives particularly intense is that in its well-meaning attempt to make sure that no school could pass muster unless every major subgroup became proficient in reading and math, Congress created very high hurdles for many schools and districts. It meant, as many school officials vehemently complained, that some of the most highly regarded schools were suddenly in jeopardy of being labeled low performing. If a school tests less than 95 percent of its children and less than 95 percent of all major subgroups in every grade -- meeting those numbers is itself a huge challenge, especially in high schools, where even a 90 percent attendance rate is extraordinary -- and if any of those subgroups fail to make progress in both reading and math in any two succeeding years, the school and its staff get a black mark and go through a federally mandated shape-up program. The principal and teachers are then subject to reassignment after four years.</p>
<p>
If making the grade is statistically tough for many schools with lots of minority students, it's almost impossible in schools with large numbers of students who arrive speaking little English. Worse, for English learners, there's a catch-22: Because those who become proficient in English -- and thus do well on tests -- are "redesignated" as "English proficient," their numbers are no longer counted in the English-learner category. California and Illinois have gotten waivers allowing them to continue to count English-learning students for three years after redesignation. But that solves only part of the statistical problem, because any school that has a rising percentage of English-learning students, as many have, will never be able to show progress in that category. "It feels like you're being set up," said a veteran school administrator and federal official who is now a superintendent in a large city with a mushrooming immigrant population. </p>
<p>
Until the federal government granted districts more flexibility in December 2003, the situation was even more surreal for special-ed students, who were being given the same tests as regular students even though they are so designated precisely because many can't manage the pace of the normal program.</p>
<p>
Meanwhile, the Bush administration is largely ignoring the law's requirement that states get qualified teachers into those schools that are getting extra funding to serve their large numbers of children from low-income families. Many districts try to honor the law's intent, but its mandate that districts put a "highly qualified" teacher into every classroom was always a little like King Canute commanding the waves to stop. Worse, despite pleas from some of NCLB's strongest supporters, the government isn't enforcing even those provisions of the law that require states to report on the qualifications of teachers at such schools. This "conspiracy of silence," says the Education Trust, a private group that's been a longtime advocate for the education of poor and minority children and that supports NCLB, has made that requirement nearly meaningless.</p>
<p>
The law's mandate that students in low-performing schools be allowed to transfer to better ones has also been honored more in the breach than in practice. In many districts, particularly in rural areas, there are no convenient alternatives. In others, the schools to which students might transfer are already overcrowded. But most often, parents prefer to keep their children in neighborhood schools, regardless of the school's performance. Of the 250,000 Chicago students eligible for choice slots in August 2003, for example, 19,000 applied and fewer than 1,100 were placed in other schools. </p>
<p>
If you listen to state legislators from both parties, however, the most frequent complaint is the administration's failure to honor its funding commitments. While the White House argues that school funding is up, current year appropriations for NCLB fall $8 billion short of what was authorized by the bill. "We were all suckered into it," said Rep. Dick Gephardt (D-Mo.), who voted for the measure. "It's a fraud." </p>
<p>
The underfunding complaints are accompanied by studies indicating that the states' costs of meeting NCLB requirements are running far beyond the money that the federal government is providing. In what's probably the most frequently cited report, published last year in <i>Phi Delta Kappan</i>, William J. Mathis, a Vermont school administrator, concluded that in seven of the 10 states he surveyed, school spending would have to increase 24 percent to comply with all the requirements of NCLB. According to Mathis, Texas, the largest of the states studied, would have to spend $6.9 billion more, roughly doubling the state's school budget. "We're being asked to do more with nothing," said Bob Holmes, who chairs the Georgia House Committee on Education. </p>
<p>
Mathis' estimates are controversial: Parsing out real NCLB cost figures is a squishy process. But there's no doubt that at a time of extremely tight state budgets, the law has, said one school superintendent, made everybody crazy. In a survey of principals and superintendents published late in 2003, Public Agenda found that nearly 90 percent regarded NCLB as an unfunded mandate. More than 60 percent said NCLB "will require many adjustments before it can work"; 30 percent said it probably wouldn't work at all. Most significantly, perhaps, the Public Agenda report noted "a noteworthy discrepancy between what NCLB calls for in terms of 'highly qualified' teachers and what superintendents and principals say they need from new teachers." Among those qualifications: the ability to maintain order and discipline in the classroom, to work with students whose background is different from their own and to establish working relationships with parents.</p>
<p>
All of that has generated increasing levels of backlash. In at least three states -- Minnesota, New Hampshire and Hawaii -- legislators passed or seriously debated resolutions urging those states to withdraw from NCLB even though it means losing the federal money that's tied to it. Otherwise, said a Hawaii Democrat, NCLB is "going to label a lot of excellent schools as failing." In Oregon, Gov. Ted Kulongoski was said to be considering joining up with the National Education Association, the nation's largest teachers' union, in a suit challenging the law as an unfunded mandate. </p>
<p>
In most states, however, there's a subtler strategy. Some have lowered their proficiency benchmarks to make their numbers look better. Among them are Michigan, which claimed it really was just making its system more realistic and comparable to other states, and Colorado and Texas, which lowered the passing score on their own tests to reduce the failure rate. Because standards vary so widely, eighth-grade students labeled proficient in Wisconsin are ranked in the 89th percentile in one national survey; a proficient ranking in Montana puts you in the 36th percentile. More pervasive still: Because NCLB says all students must be proficient by 2014, some states have drawn -- and the federal government has approved -- their expected lines of progress so that the biggest required gains are deferred until further out, when they rise steeply toward what's been described as a balloon payment (and when, presumably, most of today's governors, state superintendents and legislators are gone). </p>
<p>
Not surprisingly, NCLB is reinforcing the wave of adequacy lawsuits filed by students, community activists and local districts, demanding that states provide resources adequate to the standards and high-stakes tests they've imposed. If students who fail exit exams are denied diplomas, or if teachers and administrators face sanctions for failing to meet standards, the state presumably has a commensurate legal and moral responsibility to provide the resources to allow them to succeed. A recent adequacy decision in Kansas, which ordered that state to restructure its funding, explicitly cited NCLB; so have new suits filed by school districts and others in Nebraska, Missouri and North Dakota. </p>
<p>
More broadly, the nonpartisan National Conference of State Legislatures (NCSL) has been warning that cash-strapped states are being squeezed by their own standards, the NCLB mandates and the threat of further lawsuits. Two years ago, said David Shreve, who tracks No Child Left Behind for the NCSL, the reaction to the bill was "very positive." Then, as now, most state officials supported the testing and accountability principles; some even said NCLB was giving them "a needed kick in the butt," as Shreve put it. But after the political costs of the long and extended battles in many other places to get all constituencies behind the states' own accountability plans -- parents, the business community, teachers and administrators -- many states, Shreve said, don't want to go through the process of getting their various constituencies to support another accountability system. And while the federal mandates were designed to create a single standard, what they've done is create enough confusion among different accountability measures that it could "cause the public to sour on the whole thing." </p>
<p>
To compound the problem, neither Congress nor the administration is disposed to address the issues before the 2004 election, if then. Bush hopes to run on NCLB and doesn't want any high-profile debate about it in the meantime. And so the administration has sent out a parade of Education Department officials to laud the law as a perfect gem, to argue that funding is ample, and to brand as whiners those who want to send poor and minority kids back to what Bush called "the soft bigotry of low expectations." "For the last 25 years," said Assistant Education Secretary Laurie Rich, a veteran Texas Republican operative, at an NCSL meeting last year, "we've tried to solve problems with money alone." It was time, she said, to do something else. </p>
<p>
From the start, the NCLB debates have echoed the classic American ambivalence about how much schools alone can be expected to do in closing historic achievement gaps and overcoming social and cultural disadvantages. But it has also had political overtones all its own: the belief, by some on the right, that people like Sen. Ted Kennedy (D-Mass.) signed on only to leverage more money from the federal government and would be happy to let the accountability system fade away; and the belief, in some circles on the left, that NCLB, like all accountability systems, was a conservative trick to show the schools as failures and open the door for vouchers. "The president's ultimate goal," said former Gov. Howard Dean (D-Vt.), one of the Democrats who now harshly attacks NCLB, "is to make the public schools so awful, and starve them of money, just as he's starving all the other social programs, so that people give up on the public schools." Vouchers remain very much on the conservative agenda. </p>
<p>
What is certain is that Bush regarded the widely lauded "Texas Miracle" -- which, as much as anything, gave him credibility as a moderate when he ran four years ago -- as a model. [See Peter Schrag, "Too Good to Be True," tap, Jan. 3, 2000.] Texas had shown substantial improvements and closed racial achievement gaps on its own high-stakes tests in the 1990s. But that success had come with major costs: Dropout rates rose, teachers had to emphasize tests and drills at the expense of the broader curriculum, and school bureaucrats were involved in rampant cheating and falsification of data in places like Houston, where Paige was superintendent before Bush made him U.S. secretary of education. And students often continued to test poorly on all but the mandated tests: On its own tests, more than 80 percent of Texas students are proficient in reading; on the National Assessment of Educational Progress tests, less than 25 percent are. </p>
<p>
The real Texas record should long have been a cautionary signal, not only for NCLB but also for the states that copied it. Now, in state after state, the tough standards so hopefully adopted in the past decade are being rolled back, deadlines are being postponed and passing test scores lowered. That's driven in part by a fear of a backlash if lots of kids or schools don't make the grade, and, in part, by shortfalls in the funding that was supposed to accompany the higher standards. If local, state and federal budgets get still tighter, the same accountability-funding nexus that was supposed to get the schools more money may well drive the standards down. It's a two-way escalator. </p>
<p>
Kennedy and Miller both feel snookered by Bush and angrily denounced the president's failure to fully fund NCLB as another example of a White House of four-flushers who talk big dollars and deliver nickels. (Miller issues periodic "Broken Promises" reports accusing Republicans of sabotaging school reform.) But both continue to support NCLB, as do liberal groups like the Education Trust and the Citizens' Commission on Civil Rights. "The federal government," said William Taylor, a veteran civil-rights lawyer and chairman of the Citizens' Commission, "is doing a hell of a lot more for the states now than in the early years. A lot of the whining and bitching and moaning is coming from people who don't like the accountability provisions, so they're saying they don't have the money to do this." </p>
<p>
He's at least partly correct. Through most of the nearly 40 years since the passage of the Elementary and Secondary Education Act, Title I funds were dribbled into a politically driven form of general aid instead of going to the low-income children it was designed for. Clinton-era reforms started the process of requiring schools to focus it on poor kids -- children who in many places were long neglected -- and use it more effectively. NCLB took that process still further in making districts and schools accountable for the achievement of those children. </p>
<p>
Given the lack of plausible political alternatives -- the fact that nothing has ever put as much emphasis on the academic success of poor and minority children -- it's the only real game in town. If NCLB goes, those who'll be most hurt will, once again, be the children who can least afford it. But NCLB badly needs fixing to provide more flexibility in some areas and more rigorous enforcement in others, especially of the provisions mandating better-qualified teachers for poor children. It needs to provide more help and fewer penalties to low-performing schools. And it desperately needs to be better funded. Otherwise it will be just another in a string of hollow promises.</p>
<p><i>For more information about the issues covered in this article, visit the <a target="new_page" href="http://www.movingideas.org/issuesindepth/education.html">special report at Moving Ideas</a>.</i></p>
</div></div></div>Fri, 16 Jan 2004 20:03:07 +0000143204 at http://prospect.orgPeter SchragBooks in Reviewhttp://prospect.org/article/books-review-10
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <blockquote><p>
<b>Whose America? Culture Wars in the Public Schools</b><br /><br />
By Jonathan Zimmerman, Harvard University Press, 307 pages, $29.95
</p></blockquote>
<p>
It shouldn't be surprising that the public schools have long been the biggest battleground in America's culture wars: It's in the schools, after all, where the rubber of our pluralism and deepest social disagreements hits the road of public policy. Those wars have produced great piles of literature, much of it polemical, declaring that some new course, a new set of history books, a new court decision -- school desegregation, bans on school-sponsored prayer -- is the ruination of our once-glorious system. They've led to school-board recalls, teacher dismissals, library purges (and occasional book burnings), and sometimes violence. And while we still have latter-day descendants of the McCarthy-era textbook sniffers pursuing Red influence, people with liberal sympathies are now on official payrolls looking to make certain that texts and pictures are ethnically balanced and positive, and that no one is shown smoking or eating unhealthy foods.</p>
<p>
We've been fighting over sex education since at least the late 1950s, over creationism since the Scopes "monkey trial" in 1925, over school prayer and Bible reading for a century and half, and over the content of American history and civics texts since time immemorial. These are ugly fights that have pitted blacks against whites, Christians against Jews, Catholics against Protestants, liberal Protestants against fundamentalists, progressives against traditionalists, neighbor against neighbor. There is nothing as nasty, the historian Henry Steele Commager once said, as a good, local school fight. </p>
<p>
But no simple list covers the wide spectrum of issues -- about race, class, religion, patriotism, civil liberties, proper child-rearing practices, the effective teaching of reading and math -- for which public schools have been a principal cockpit. Sometimes the real issue is there in plain sight; sometimes it's buried or attached to some other agenda. Sex education and school integration, for example, were readily exploited as communist plots by such right-wing groups as the John Birch Society's 1960s-era Movement to Restore Decency. Low student test scores became fodder for critics who saw the schools as the cause of American economic weakness, while others have seen testing itself as a device to undermine and destroy public education. And beneath those controversies lurks the deeper national ambivalence between our Puritan and libertarian strains, between meritocratic "standards" and our historic anti-intellectualism, and between traditionalism and progressivism in education and so-called permissiveness in the rearing of children. </p>
<p>
In the past year, several thoughtful books have sought to add some perspective to such earlier alarmist works as Chester E. Finn Jr.'s <i>We Must Take Charge</i>, polemics such as Thomas Sowell's <i>Inside American Education: The Decline, the Deception, the Dogmas</i>, Alfie Kohn's counter-polemic <i>The Schools Our Children Deserve: Moving Beyond Traditional Classrooms</i> and "Tougher Standards," and a host of others. Among the new books -- and surely the most important and readable of them -- is Jonathan Zimmerman's <i>Whose America? Culture Wars in the Public Schools</i>, which focuses on two major sets of issues during the course of the past century: the "History Wars" and "God in the Schools." </p>
<p>
Zimmerman, director of the History of Education Program at New York University's Steinhardt School of Education, believes that while Americans have managed to compromise their differences about the teaching of history and civics, the result has been a denatured mush of passive and evasive writing, with every ethnic group getting its heroes and some nice paragraphs in the textbook, all stirred into an overwhelmingly positive, triumphalist -- and dull -- stew. "Diversity and banality went hand in hand," Zimmerman writes, "the twin legacies of America's tortured encounter with race in the twentieth century." Indeed, he says, it was discomfort with the texts that he was forced to use in his years as a high-school history teacher that first set him onto his subject. But banality may not be the most worrisome outcome. By partly supplanting the strong common theme of Western constitutionalism with multiculturalism, a great many teachers, books and courses may also be undermining the political traditions protecting dissent and diversity. We don't yet know to what extent the events of September 11 have reunited the country, but in the two prior decades, Arthur M. Schlesinger Jr.'s warnings about the disuniting of America sounded disturbingly accurate. Zimmerman briefly discusses the historical roots of Afrocentrism in the Garvey movement of the 1920s but gives no indication of how influential it is in the schools now. </p>
<p>
Not surprisingly, Zimmerman points out, the battles about God -- prayer, Bible reading, creationism -- while changing in terms, haven't been so easily resolved. History lends itself to compromise -- textbooks add Crispus Attucks, Martin Luther King Jr. and Black History Month for African Americans, Thaddeus Kosciusko for the Poles, Chief Joseph for the American Indians, Friederich von Steuben for the Germans -- but the same can't be as readily accomplished in religion. Attempts at such things as "nondenominational" (generally meaning Protestant) prayer often ran into resistance from believers and nonbelievers alike. The fear of giving offense to someone or some group makes the range of the permissible very narrow indeed. To this day, we fight about what songs can be sung in the weeks before Christmas and Hanukkah, and about what symbols are acceptable. Weekday religious education, where students were released from public schools for an hour or so a week to attend classes at various churches, peaked in the late 1940s and has now slowed to a trickle.</p>
<p>
The terms of the religious battles have changed, Zimmerman says, with demands for creationism and prayers now being voiced as a civil-rights issue -- a demand for equal time that the U.S. Supreme Court, in cases such as the use of vouchers in religious schools, seems increasingly prone to uphold. Zimmerman contends that the backlash against the Supreme Court's prayer bans of the 1960s was a large factor in the politicization of the Christian right -- Jerry Falwell's Moral Majority, Pat Robertson's 700 Club -- and the new American conservatism that came with Ronald Reagan's embrace of the prayer issue in 1980. But because those fights were part of a wider backlash against the welfare state, it's a hard case to prove. </p>
<p>
Zimmerman traces some of the ironies, the flips and the inconsistencies in this rich story: the professed defenders of liberal democracy who nonetheless argued that curricula should be written by educational experts and professional historians, not driven by the wishes of parents and local voters; the blacks, much of whose case for desegregation rested on religious and moral imperatives, who joined conservatives and segregationists in their criticism of the Supreme Court's decisions banning official prayers and Bible reading; the conservatives, using the privacy doctrine elaborated in <i>Roe v. Wade</i>, to argue that sex education violated the privacy rights of children whose parents believed that teaching about sex was their prerogative, not the state's; the accusations against Mary Calderone, the founder of the Sex Information and Education Council of the United States and among the most traditionalist advocates of family values, as a vile seducer of children and corrupter of Christian virtues. </p>
<p>
Like sociologist Janice M. Irvine in her recent book <i>Talk About Sex: The Battles Over Sex Education in the United States</i>, Zimmerman traces the changing tactics of conservatives. Once outright opponents of sex education, they now support it in the face of such hazards as AIDS, favoring, however, so-called abstinence-only courses that conceal and distort as much as they teach. Despite his tendency to use such awkward verbs as "gushed," "screamed" and "blared" in quoting extremists, Zimmerman tries to be scrupulously fair to the feelings of those fundamentalist parents. But he never really answers the complaint that parental rights are violated when schools talk about masturbation, abortion and birth control. Nor does Zimmerman (or Irvine, for that matter) provide any numbers about how successful those efforts, now backed by the federal government, have been. American liberals -- and the school establishment generally -- have been much more willing to respond to demands for ethnic multiculturalism than to accept religious pluralism in the schools. Given the political problems likely to accompany such acceptance and First Amendment restrictions on government support of religion, the reluctance is understandable. But it still raises serious equity issues. </p>
<p>
Zimmerman favors more robust, open classroom discussions about history and topics such as creationism than most schools now permit. "Our history and social studies classes 'take sides,' too," he writes, "sanctifying the heroes and demonizing the villains. This process represents its own form of quasi-religious indoctrination. It, too, must come to an end." He also notes, "When we wrap American history in myth, we deny students the opportunity to wrestle with its real dilemmas." And he's quite right in deploring the airbrushed portrayal of the nation's ethnic minorities -- the failure to tell how Africans themselves participated in the slave trade or of human sacrifice among some American Indians. But he neglects the difficulty of writing those dilemmas into the textbooks and then turning them into intelligent and politically tolerable classroom discussion. Although he's aware of it, he skims past the uproar generated by Gary Nash and his colleagues at the University of California, Los Angles, whose proposed standards emphasized the dark episodes of U.S. history -- the massacre of American Indians, the exploitation of workers in American industry, McCarthyism, the Ku Klux Klan -- and did much less to celebrate the standard pantheon of American heroes and achievements. </p>
<p>
The Nash standards, whose development was commissioned by Lynne Cheney when she ran the National Endowment for the Humanities, were widely attacked, repudiated by Cheney and quickly condemned in a 99-to-1 U.S. Senate vote, which seems to indicate that when there is robust debate, it's more likely to take place outside the classroom than in. When Zimmerman declares that "a healthy democracy requires citizens who have the skills and desire to make up their own minds -- about evolution, history, and everything else," he's bundling and slipping past a lot of things that most American schools have neither the political freedom nor the pedagogical capacity to implement. Where, to name the simplest of them, should the evolution debate take place -- in the science program or in the humanities program? If the latter, some states already encourage it. And what of the stickers that Alabama puts on its biology texts warning readers that evolution is an unproven theory? </p>
<p>
American history curricula, reflecting the wider revisionism in the field, have indeed become more suffused with multiculturalism and the separate agendas of various groups. Schlesinger's warning that history teaching is veering toward too much <i>pluribus</i> and too little <i>unum</i> still resonates. But political correctness, of course, was not invented by the left. It's both a tribute and a complaint to wish that Zimmerman's even-handed book had looked at the broader swath of our schoolhouse culture wars. San Francisco's school board recently debated whether to schedule a daylong, district-wide teach-in on war with Iraq: Should it be an even-handed discussion (hardly likely in San Francisco) or a one-sided barrage of questions about such a war? That debate raises all sorts of issues -- about local control, about the rights of parents, about the proper role of the schools, about indoctrination. </p>
<p>
Similarly, we have ongoing debates about the privacy and civil liberties of students -- about drug tests and locker searches -- and even more vigorous, century-long disputes between the advocates of phonics-based reading instruction and things such as whole language and, more broadly, between permissive, discovery learning and what's called direct instruction, and between life adjustment and self-esteem (with respect to such things as social promotion) and test-based objective standards. We've had our excursions to the extremes on all sides of those battles, from A.S. Neill's child-dominated Summerhill School to the scattering of quasi-military charter schools recently created around the country. Forty years ago, California elected a right-wing state school superintendent named Max Rafferty who ran on a platform of phonics, fundamentals and patriotism, restoring McGuffey's Readers to the classroom, "indoctrinating" (his word) children against communism, and cleaning up their behavior and cutting their hair. Now there was a real culture warrior. </p>
<p>
All these things, and a great many more, fall into a long history going back at least to Rousseau (on the one hand) and Prussian schoolmasters (on the other). And they're all linked, encompassing our national ambivalence about whether, for example, high schools should be high-standards academic and behavioral training grounds or teen-age social-adjustment centers that foster cooperation, driver education, sports and dances; whether kindergarten -- and even nursery school -- should be a time for play and exploration or the beginning of rigorous academic training; and about who has the final say on how children should be taught. Hard-line polemicists such as Sowell forget that often it hasn't been educationists who've stood in the way of tougher academic requirements but parents who want to shield their children from the apostasy of Darwinism or the taint of subversive ideas and local boosters who believe that giving young men the chance to play football on Friday nights is more important than requiring them to have decent grades. </p>
<p>
There are significant social, cultural and political links among all the issues that vex American schools -- not least of them the fact that we have assigned the schools such an enormous burden in dealing with virtually every problem that comes along, from assimilating immigrants (or celebrating their separate cultures) and closing social and economic gaps to instruction about the evils of alcohol, drugs and tobacco and the development of proper attitudes (depending, of course, on place and local politics) toward sex and gender roles. Why is it that even in the debate about the teaching of math, the partisans on the respective sides, learned professors many of them, sometimes slash one another with the passion of religious warriors? What are the connections among all these things, what role does class play (it does play a huge role) and what can it all tell about the deeper uncertainties and divisions in the national psyche and culture? </p>
<p>
Any book that deals with any of these things separately, no matter how probing, is likely to miss the larger and far more important story. Given the huge social demands made on American schools, moreover, and the democratic, essentially local base of their support and governance, is it even possible to imagine a system that is free of cultural conflict and radically different from what we have? It's unfair to chide an author for not writing a different book. But here's a story that badly needs telling.</p>
</div></div></div>Wed, 19 Mar 2003 22:18:27 +0000142934 at http://prospect.orgPeter SchragWar on the SAThttp://prospect.org/article/war-sat
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p><span class="dropcap">W</span>herever he went in the past year, University of<br />
California President Richard Atkinson was handing out verbal analogies questions:<br />
DRAPERY is to FABRIC as (pick one) fireplace is to wood; curtain to stage;<br />
shutter<br />
to light; sieve to liquid; window to glass. </p>
<p>
The questions come from the SAT I exam that 1.3 million college applicants<br />
take every year. The questions aren't all that tough, but Atkinson believes they<br />
show that the test is a capricious exercise that adds little information to what<br />
other tests and grades show about a student's academic capabilities. At the same<br />
time, it discriminates against poor and minority students, and distracts<br />
attention from the core academic subjects that high-school students should focus<br />
on. "If you know the definition of those words," he said, "the reasoning is<br />
trivial." So he's been working hard to change UC admissions policies to rely on a<br />
new, still-to-be-designed test instead of the SAT I -- and to persuade other<br />
universities to do the same. "If we do it," he said, "other institutions will<br />
come along." </p>
<p>
Atkinson's message is being heard. In March, a little more than a year after<br />
he publicly announced his intentions, the College Board, which designs and<br />
manages the SAT tests, announced plans to revise the SAT I. Among the<br />
contemplated changes: adding a writing section, switching to math problems based<br />
less on aptitude and more on specific skills learned in advanced high-school math<br />
courses, and de-emphasizing or perhaps eliminating the analogies. Board President<br />
Gaston Caperton acknowledged that the revisions are being prompted by Atkinson's<br />
challenge.</p>
<p>
But beyond the matter of the SAT, Atkinson has been struggling with a larger<br />
and more vexing issue in American higher education: how to square the demanding<br />
academic standards of a selective public university with its democratic mission<br />
to serve all citizens -- "to honor both the ideal of merit," he said, "and the<br />
ideal of broad educational opportunity." Particularly in a state like California,<br />
where whites are now just another minority and where, in another generation,<br />
Hispanics will become an absolute majority, the answers will play a crucial role<br />
in determining just what kind of society is to emerge.</p>
<p>
Atkinson, cognitive psychologist, former director of the National Science<br />
Foundation, and former chancellor at UC's San Diego campus, is well aware of the<br />
obstacles to fundamental reform.</p>
<p>
"He's been stewing about the SAT for years," one of his senior aides said. "He<br />
started reading the test questions and saying, 'Hey, this is a lousy test.' And<br />
he's probably the only guy who could have taken this on. He has the stature, the<br />
professional background, and [at the age of 73], he's getting ready to retire."</p>
<p>
He's also possessed of a quiet passion that's easy to miss. In an era when<br />
university presidents spend much of their time raising money, and are heard less<br />
and less on major policy issues, Atkinson's push to end the use of the SAT I, to<br />
broaden the pool of university applicants, and to "move away from admission<br />
processes that use narrowly defined quantitative formulas [mostly grades and test<br />
scores] and instead adopt procedures that look at applicants in a comprehensive,<br />
holistic way," has put him as close as anyone in this era to the ranks of<br />
educational statesmen. </p>
<p>
<span class="dropcap">B</span>y now people in the field understand the close<br />
connection<br />
between affirmative action and the grades-plus-test-score formulas that most<br />
selective universities rely on in admissions, even when it's denied. Race-based<br />
affirmative action, often by means of an equally inflexible formula, is designed<br />
to<br />
offset the effects of test scores on black and Latino applicants who, on average,<br />
test lower than whites and Asians. (For two decades or more, until well into the<br />
1990s, places like UC Berkeley, the University of Texas, and the University of<br />
Michigan added extra points to the scores of black and Latino applicants.) So as<br />
federal courts -- in Texas, Michigan, and Georgia -- join voters in California<br />
and<br />
Washington in ending the use of race-based criteria in university admissions (and<br />
in employment and contracting), the old grades-plus-test-score formulas come<br />
under increasing scrutiny as well. </p>
<p>
One of those courts (in the Texas case) went so far as to effectively<br />
overturn the U.S. Supreme Court's 1978 decision in <i>Regents of the University<br />
of California v. Bakke,</i> a decision that prohibited quotas but<br />
permitted university admissions officers to find other ways to make race a "plus"<br />
factor in evaluating candidates. Sooner or later the Supreme Court will have to<br />
take up the question again. And when it does, it's quite likely to narrow<br /><i>Bakke</i> to prohibit race-based formulas. Thus, the issues Atkinson has<br />
raised will become increasingly pertinent even in private institutions. The fact<br />
that <i>Bakke </i>was a California case -- that it was the UC precedent that won<br />
all universities the right to consider race -- makes the story even more telling.</p>
<p>
<span class="dropcap">A</span>tkinson, who was appointed president in August<br />
1995, almost<br />
didn't survive the first three months of his tenure. Just a month before his<br />
appointment, then-Governor Pete Wilson, looking for a wedge issue to breathe life<br />
into his faltering presidential campaign, had successfully pressured the UC board<br />
of regents to end race preferences in university admissions, hiring, and<br />
promotion. At a meeting packed with shouting protestors in San Francisco, the<br />
board, ignoring the faculty governance processes that such decisions normally<br />
require, voted 14 to 10 to abandon affirmative action and to base between 50<br />
percent and 75 percent of all campus admissions decisions on high-school grades<br />
and test scores alone. That made UC the first major institution in the nation<br />
that<br />
could not consider race in its admissions and hiring. But a few months later,<br />
Atkinson, who, along with the university's other chancellors, had strongly<br />
opposed the regents' decision, announced that he was postponing its<br />
implementation by a year -- from fall 1997 to fall 1998. The university, he said,<br />
didn't have time to act sooner. </p>
<p>
That brought an angry reaction, particularly from Wilson and Ward Connerly,<br />
a black Sacramento businessman and UC regent who, to this day, is a national<br />
leader in the campaign to end affirmative action and who, along with Wilson,<br />
spearheaded the UC ban. Atkinson says he discussed the postponement with two or<br />
three key board members, but Connerly thought the regents had been blindsided.<br />
Atkinson was called to the governor's office, where Wilson pounded the table,<br />
threatened to get him fired, and ultimately forced him to write a letter<br />
acknowledging that he had "erred." "There is no question in my mind," Atkinson's<br />
letter said, "that it is the constitutional duty of the Board to set policy for<br />
the University, and the role of the President is to implement that policy."<br />
Wilson, Atkinson said, wrote much of the language himself. At the same time, it<br />
was also clear that if Atkinson had been fired, the resulting uproar -- among<br />
faculty and among the UC chancellors -- could have made the bitter fight over the<br />
ban itself look like a picnic. </p>
<p>
Atkinson vehemently denies that the ending of affirmative action spurred his<br />
search for new admissions criteria. But it certainly increased the demographic<br />
and political pressure. Although the university has been proclaiming that its<br />
recent outreach efforts have succeeded in drawing as many black and Latino<br />
applicants -- and in enrolling as many minority freshmen -- as UC's nine campuses<br />
had<br />
drawn before the regents' ban went into effect, that was emphatically not the<br />
case at Berkeley and UCLA, the system's flagship institutions. It really wasn't<br />
even true in the system as a whole, if one used 1995, the year of the regents'<br />
vote, as a baseline, rather than 1997, the last year before implementation, when<br />
many qualified blacks and Hispanics were already saying they wouldn't have felt<br />
welcome at UC and thus never applied. </p>
<p>
As a result, demands grew urgent -- both from dissenting regents like Bill<br />
Bagley, a lawyer and former Republican state legislator, and from the<br />
legislature's increasingly powerful Latino caucus -- to rescind the 1995 ban and<br />
to<br />
take other measures to broaden black and Hispanic enrollment. But it was<br />
Atkinson, who had always disliked the SAT, who was the driving force. </p>
<p>
Atkinson contends that unlike the SAT IIs (once called achievement tests,<br />
which are exams in the major subjects that students take in high school -- math,<br />
history, composition, the sciences, foreign languages), the SAT I, originally<br />
called the Scholastic Aptitude Test, retains the genetic code of its discredited<br />
predecessors in intelligence testing. It is not directly related to any subject<br />
students are taught in high school; worse, it drives affluent students, some as<br />
young as 12, into $600 cram courses that teach little except the tricks of taking<br />
the test. UC's data also show that the disparity in scores between<br />
underrepresented minority applicants and whites and Asians is significantly<br />
greater on the SAT I than on the SAT IIs. </p>
<p>
In any case, Atkinson said, "it seems only right that students should be<br />
judged on what they've accomplished in four years of high school, not on how they<br />
rate on an ill-defined measure of aptitude or intelligence ... . Anyone involved<br />
in education should be concerned about how overemphasis on the SAT is distorting<br />
educational priorities ... how the test is perceived by many as unfair, and how<br />
it can have a devastating impact on the self-esteem and aspirations of young<br />
students." It's not a new argument, but never has it come from a more powerful<br />
and credible source. </p>
<p>
By law, UC is mandated to take the top 12.5 percent of each year's<br />
California graduates. To pick them, it currently requires undergraduate<br />
applicants to do well on a list of prescribed high-school courses and to take the<br />
SAT I. They also have to take three SAT IIs, one in composition, one in math, and<br />
one in any other field the applicant chooses. But the university's data<br />
demonstrate that the combination of grades, the SAT II scores, and the SAT I<br />
scores provides virtually no more information on how an applicant will do<br />
academically as opposed to the combination of grades and the SAT IIs by<br />
themselves. "The SAT," Atkinson said, "adds nothing to our ability to predict"<br />
college performance.</p>
<p>
Atkinson is no testing Luddite. He would retain the SAT IIs, and he has UC<br />
working with the nation's two major admissions testing organizations to produce a<br />
whole new exam, based in large part on what students are supposed to learn in<br />
high school. The plan is to also develop a "concordance table" so that scores on<br />
the new exam could be used instead of the SAT I -- thus, Atkinson hopes, sparing<br />
students applying to other institutions from taking two sets of tests. </p>
<p>
The College Board doesn't deny UC's data, although Wayne Camara, the board's<br />
vice president for research and development, offers numbers from a group of 23<br />
self-selected universities showing that the SAT I does add some marginal<br />
information for certain ethnic groups. Nonetheless, if UC were to abandon the SAT<br />
I, it would be a major blow for the test and the board, as UC is the board's<br />
biggest customer. (The applicants, of course, pay for the test.) It was only when<br />
UC began to require it for all applicants in 1968-1969 that the SAT became a<br />
truly national exam. There is thus ample reason for the board to talk about<br />
revisions to accommodate Atkinson's complaints. </p>
<p>
The outcome of the UC battle over admissions tests is far from a sure thing.<br />
It's been pointed out, for example, that the SAT II foreign language test gives<br />
certain students -- first-generation Latinos for example -- a large advantage<br />
over<br />
African Americans. More important, as Bob Laird, Berkeley's former undergraduate<br />
admissions director said, one of the main reasons many blacks and Latinos are<br />
ineligible for UC is not "because their grades weren't good enough or because<br />
they didn't have the required college prep courses, but because they didn't<br />
complete the SAT IIs." Continuing to rely on these exams, and adding another<br />
costly test as well, would hardly improve that situation. </p>
<p>
In addition there's the status problem. Institutions not too sure of their<br />
academic prestige may want those SAT I numbers to reinforce their ratings (say in<br /><i>U.S. News and World Report</i>) and their academic pretensions. Berkeley,<br />
UCLA, and UC-San Diego may be secure enough that SAT scores no longer mean as<br />
much. But weaker UC campuses like Riverside may feel they need them. The issue is<br />
to go to the regents this summer, and it may well be that the College Board's<br />
plans to revise its test are, in part, an effort to play regental politics by<br />
strengthening the hand of those who have doubts about Atkinson's proposal. </p>
<p>
Yet however the SAT question is decided, Atkinson has already moved his<br />
institution a long way from where it was in 1995. Three years ago, following the<br />
Texas model, UC began to accept every student in the top 4 percent of his or her<br />
high-school graduating class, regardless of the quality of the school or the<br />
student's test scores. (For those below the top 4 percent, admission is based on<br />
a combination of grades and test scores.) Then came a great gush of reforms: In<br />
May 2001, less than six years after they approved it, the regents (with the<br />
support of Connerly) unanimously rescinded their ban on race preferences. Because<br />
a similar ban had been written into the state constitution with the passage of<br />
Proposition 209, the regents' act was largely symbolic. But in removing the UC<br />
"unwelcome mat," it was significant nonetheless. In July the board approved a<br />
"dual admissions" plan under which all California high school students who are<br />
between the top 4 percent to 12.5 percent of their respective high-school<br />
classes will be guaranteed UC admission as juniors, provided they successfully<br />
complete their first two years at a community college. The university, citing a<br />
lack of funds (and probably hoping to extract them from the legislature), has<br />
deferred implementation of dual admissions but has promised to launch it in the<br />
coming years.</p>
<p>
And then in November, the biggest reform was instituted: board approval of<br />
"comprehensive review," Atkinson's holistic admissions process, on an Ivy League<br />
model, under which the total record of every applicant -- grades, tests,<br />
handicaps<br />
overcome, special skills, diversity of background, talents, and achievements --<br />
is<br />
considered. What UC calls eligibility, meaning a guarantee of admission to some<br />
UC campuses, will still be based on class rank or on grades in mandated subjects<br />
and test scores, but admission to any particular campus, including Berkeley and<br />
UCLA, will be determined by "comprehensive review." </p>
<p>
For a public university, that's a major departure. It's also risky. When the<br />
regents debated the issue last fall, Berkeley political science professor Jack<br />
Citrin charged that "these flabby, vague guidelines" are "an invitation to<br />
introduce a new set of group preferences" and "open up a Pandora's box of<br />
problems," that will undermine academic standards and expose the university to<br />
legal challenges. What's certain is that the "whole man" admissions criteria of<br />
the Ivy League and other private East Coast colleges for a long time meant that<br />
only WASP gentlemen from the right families and the right schools got in. The SAT<br />
was an antidote, and if students and their legislators don't trust the people<br />
making Atkinson's holistic decisions, they may want to see more such objective<br />
numbers.</p>
<p>
<span class="dropcap">E</span>ver since the supreme Court's 5-to-4 <i>Bakke</i><br />
ruling -- which was really a<br />
4-to-4-to-1 decision and deeply confusing -- the courts have been ambivalent<br />
about<br />
the use of race-based affirmative action to enhance diversity on university<br />
campuses. What's constitutional in most of the country is now unconstitutional in<br />
Texas, Louisiana, and Mississippi, the states covered by the 5th U.S. Circuit<br />
Court of Appeals' 1996 decision in <i>Hopwood v. Texas.</i> And it's uncertain in<br />
southeastern states covered by last year's 11th U.S. Circuit Court of Appeals<br />
ruling that the University of Georgia's admissions policy "that mechanically<br />
awards an arbitrary 'diversity' bonus to each and every nonwhite applicant ...<br />
fails strict scrutiny." Meanwhile an appellate ruling is pending in two<br />
conflicting Michigan decisions, one striking down race preferences in law school<br />
admissions, the other upholding them in undergraduate admissions. </p>
<p>
Although the Supreme Court has so far ducked the issue, it will not be able to<br />
do so much longer. And any decision that removes the possibility of adjusting the<br />
test scores of minority applicants will bring widespread pressure to<br />
de-emphasize, if not wholly eliminate, tests like the SAT. That's been the clear<br />
trend where -- as in Texas, California, and Florida -- the courts or the voters<br />
have already acted or appeared on the verge of acting.</p>
<p>
So far, the results of alternative approaches have been mixed. Atkinson says<br />
that UC's policy of admitting the top 4 percent of the seniors from each high<br />
school, the first of his admissions reforms to go into effect, has been a<br />
resounding success. Last year it prompted an 8 percent jump in the applicant<br />
pool, of which a significant percentage are black or Hispanic, many from high<br />
schools that had rarely sent students to UC before. In its first year, roughly 80<br />
percent of the graduates in the top 4 percent of their high schools applied. </p>
<p>
Something similar happened in Texas. But in its brief seeking review of<br /><i>Hopwood</i> last year -- an appeal that the Supreme Court ultimately refused<br />
to hear -- the University of Texas argued that such approaches "unavoidably [have]<br />
the effect of lowering undergraduate admission standards." </p>
<p>
For people like Harvard law professor Lani Guinier, once Bill Clinton's<br />
nominee to head the Civil Rights Division of the Justice Department, "merit in a<br />
public institution of higher education cannot exist independent of ...<br />
diversity." She wants to vastly enlarge diversity considerations in the admission<br />
of all students, regardless of race or gender. She also seems to favor lotteries<br />
to choose from the pool of qualified applicants, using tests only to establish<br />
the floor. </p>
<p>
The chances that any major university would adopt such criteria are slim. The<br />
closest any came was the City University of New York, with its disastrous<br />
open-admissions plan. That is not what Atkinson is looking for. UC will open more<br />
routes for students hoping to get in, and it will consider more admissions<br />
criteria, which of course will allow for subtle race preferences -- how can you<br />
look at community service or handicaps overcome without reference to race? But<br />
Atkinson does not intend to abandon tests as a major factor in admissions<br />
decisions. The tension between "the ideal of merit and the ideal of broad<br />
opportunity" will not be resolved by his reforms so much as exposed to the light.<br />
Still, if the Supreme Court ever overturns <i>Bakke,</i> the rest of academia may<br />
have to learn some lessons from UC. </p>
<p>
It's been just 25 years since the California Supreme Court, in a 6-1<br />
decision, first ruled that the university could not consider race in making<br />
admissions decisions. "The principle that the Constitution sanctions racial<br />
discrimination against a race -- any race," wrote the liberal Justice Stanley<br />
Mosk, "is a dangerous concept fraught with potential for misuse in situations which<br />
involve far less laudable objectives than are manifest in the present case." It<br />
was California's appeal of that ruling that led to the U.S. Supreme Court's<br /><i>Bakke</i> decision, on which all of this country's admissions office<br />
affirmative action rests. Five years ago, the state's voters, through Proposition 209,<br />
trumped <i>Bakke</i> and, in effect, restored the Mosk decision. Now, as the<br />
number of young American blacks and Latinos continues to grow, Atkinson and UC<br />
are trying to take higher education into what begins to look ever more like the<br />
post-<i>Bakke</i> era. For Atkinson, who hopes to step down next year, it could<br />
be an imposing legacy.</p>
<p> </p></div></div></div>Thu, 18 Apr 2002 14:55:26 +0000142546 at http://prospect.orgPeter SchragAshcroft's Hypocrisyhttp://prospect.org/article/ashcrofts-hypocrisy
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p><span class="dropcap">T</span>hree years ago, John Ashcroft--then a senator from<br />
Missouri, now the U.S. attorney general--opened a Senate Judiciary subcommittee<br />
hearing on gun control by declaring that "a citizenry armed with both the right<br />
to possess firearms and to speak freely is less likely to fall victim to a<br />
tyrannical government than a citizenry that is disarmed from criticizing<br />
government or defending themselves." </p>
<p>
No member of his old committee thought to quote those words back to him when<br />
he appeared in December to defend his administration's assertion of sweeping new<br />
powers--the creation of military tribunals to try any noncitizen that the<br />
administration says is a terrorist, its failure to disclose even the names of<br />
some 1,200 detained suspects, its declaration that it may monitor, without<br />
judicial authority, conversations between suspects and their lawyers--all in the<br />
name of national security. No mention of those old words even when Ashcroft came<br />
close to accusing government critics of something approaching treason. "To those<br />
who scare peace-loving people with phantoms of lost liberty," he said in his<br />
prepared statement, "my message is this: Your tactics only aid terrorists, for<br />
they erode our national unity and diminish our resolve. They give ammunition to<br />
America's enemies and pause to America's friends."</p>
<p>
But that was just the beginning of the ironies. The same morning, <i>The New<br />
York Times</i> reported that Ashcroft's Justice Department had blocked efforts by<br />
the FBI and other law-enforcement agencies to check Justice's database to<br />
determine if any of the 1,200 individuals detained after the September 11 attacks<br />
had bought guns or had sought to do so. Why, asked Massachusetts Senator Edward<br />
Kennedy, was Ashcroft handcuffing the FBI--his phrase--in its efforts to<br />
investigate gun purchases by suspected terrorists?</p>
<p>
The answer, said Ashcroft, was simple. The law creating the federal database<br />
of gun buyers and would-be purchasers (which mandates that the records are kept<br />
for only 90 days) didn't permit such uses; Congress had forbidden it. What<br />
Ashcroft didn't say was that as a member of the Senate--one whose libertarian<br />
streak never went much beyond the agenda of the gun lobby--he had worked as hard<br />
as anyone to write even more restrictions into that law. </p>
<p>
Did Ashcroft think that the law should be changed? the senators asked. Would<br />
he send up a bill calling for such changes? Why were there no background checks<br />
at gun shows? How many terrorists bought semiautomatics at gun shows in complete<br />
anonymity? Again and again, the attorney general ducked: If Congress sent him<br />
something he would review it, he told the lawmakers, but "I won't comment on<br />
legislation in the hypothetical." As to questions from Senator Arlen Specter, the<br />
Pennsylvania Republican, about how Ashcroft could justify detaining aliens<br />
despite orders from immigration judges to release them, the witness simply<br />
declared that in his capacity as attorney general, he's the boss. </p>
<p>
In fact, there was nothing surprising in any of this--not in the politics, not<br />
in the self-righteousness, not in the slippery answers. In Missouri, Ashcroft<br />
served as attorney general and then as governor. His remark about government<br />
critics giving aid to the country's enemies, said Bill Freivogel, the deputy<br />
editorial-page editor of the <i>St. Louis Post-Dispatch,</i> "was reminiscent of<br />
the John Ashcroft Missourians know." In private, he's said to have a sense of<br />
humor; in public, said William Woo, the former editor of the<br /><i>Post-Dispatch,</i> "he's a Reverend Dimmesdale type." </p>
<p>
<span class="dropcap">A</span>shcroft, the Bush administration's special gift to the Christian<br />
right and arguably the most conservative member of the Senate during his one-term<br />
tenure, was caught in flagrant misrepresentations during his confirmation hearings<br />
in January 2001. Because he was so doctrinaire, some people asserted that at<br />
least he must be honest; his refrain, when committee Democrats asked one of their<br />
rare tough questions, was to thank the member for such candor. But his<br />
explanation for his attempt to block the appointment of James Hormel, who is gay,<br />
as U.S. ambassador to Luxembourg came close to in-your-face stonewalling. He<br />
fudged his record of vehement opposition to school desegregation in St. Louis (a<br />
court had gone so far as to tell him to drop his "feckless appeals"). And his<br />
explanation for what, in essence, had been his mugging of Ronnie White, the black<br />
Missouri Supreme Court justice nominated by Bill Clinton to the federal bench,<br />
was so dishonest that even the mild-mannered columnist David Broder called it<br />
"the worst kind of demagoguery." </p>
<p>
Even after September 11, Ashcroft's Justice Department found time and<br />
manpower to pursue his old agenda, first through its crackdown on the providers of<br />
medical marijuana under California's initiative legalizing the medical use of pot<br />
and then by trying to stop physicians from providing drugs under an Oregon law,<br />
approved twice by voters, allowing the assisted suicide of terminally ill<br />
patients. In the latter case, Ashcroft, reversing the hands-off policy set by his<br />
predecessor, Janet Reno, directed the Drug Enforcement Administration to take<br />
action against any doctor who writes prescriptions for such medications. </p>
<p>
The DEA, Ashcroft blithely declared, could discern "the important medical,<br />
ethical, and legal distinctions between intentionally causing a patient's death<br />
and providing sufficient dosages of pain medication necessary to eliminate or<br />
alleviate pain." But as almost any physician--and millions of others--can tell<br />
you, the distinction is often blurry. In the end, easing the pain of a terminal<br />
cancer patient with increasing doses of morphine (for example) and hastening the<br />
person's death are indistinguishable. Ashcroft's order threatens millions of<br />
terminal patients with an unnecessarily painful and humiliating death.</p>
<p>
Ashcroft's order has been temporarily blocked by a federal district court and<br />
will almost certainly be appealed once it's decided there. But if this were<br />
almost any other issue--enforcement of gun regulations or environmental laws or<br />
equal-employment rules--Ashcroft would have been in court fighting this federal<br />
seizure of power as an assault not just against the states but against the<br />
express wishes of voters.</p>
<p>
Judging Ashcroft's post-September 11 behavior leaves a lingering question: How<br />
much of his response has been spurred by administrative high-handedness and how<br />
much by frustration about his department's domestic confusion and security<br />
lapses--the FBI's weeks of fumbling the anthrax investigation, the porous<br />
screening at airports, the vague public warnings, the delays and waffling in<br />
gearing up public-health and other local security measures? How much, in short,<br />
is panic and posture, and how much rank authoritarianism? </p>
<p>
Justice Department officials have offered varied reasons for their failure to<br />
disclose the names of most of the 600-plus people who as of mid-December were<br />
still being detained. They were protecting suspects' privacy. They didn't want<br />
al-Qaeda to know which of its operatives were in custody. (Of course, if al-Qaeda<br />
is half as crafty as it's made out to be, it has long discovered who's being<br />
detained on its own.) The more likely reason, said Senator Russ Feingold--the<br />
Wisconsin Democrat who was in the majority in the surprisingly close 58-to-42<br />
Senate vote to confirm Ashcroft but cast the lone Senate vote against the<br />
administration's antiterrorism bill--is that the feds don't want anyone to know<br />
about the "shoddy way" they've handled those detainees. Even veteran<br />
law-enforcement officials saw problems. Those preemptive arrests and detentions,<br />
said William Webster, former director of both the FBI and the CIA, "carry a lot<br />
of risk. . . . You may interrupt something, but you may not be able to stop what<br />
is going on." Thinking of the stiff-backed John Ashcroft as <i>Casablanca</i>'s<br />
Captain Renault is a stretch, but "round up the usual suspects" seems close<br />
enough as an explanation. </p>
<p>
<span class="dropcap">T</span>here were similar questions about the Justice Department's<br />
rationale for its effort to have local authorities question some 5,000 young men,<br />
most of them from the Middle East and South Asia. The stated reason was the<br />
search for information; but then why confine the inquiry to that group? Women, as<br />
a senior Judiciary Committee staffer pointed out, also have information, as do<br />
older men. This campaign, the aide suggested, seems more motivated by the hope<br />
that the dragnet will snag some suspects. So far, it's been Germany, France,<br />
Britain, and Spain that have identified most of the people who seem to have real<br />
connections to the September 11 attacks; but there's now a good chance that,<br />
following Spain's lead, these countries won't turn suspects over if the United<br />
States insists on trying them in military tribunals. </p>
<p>
And yet after some preliminary pronouncements from the chairman of the<br />
Judiciary Committee, Vermont Democrat Patrick Leahy, that the December hearings<br />
would be tough, Ashcroft got a fairly easy ride. Feingold says that Congress's<br />
easy acceptance of the terrorism bill--he called it "an old FBI wish list to get<br />
things back where we were" in the old J. Edgar Hoover days--was the green light<br />
for everything the administration has done since. "Now we're playing catch-up."<br />
But it's also true that senators can read the polls, and the polls show that<br />
almost anything flying the flag of antiterrorism has strong public support. To<br />
date, the administration has been careful to apply most of its expansive claim of<br />
new powers to noncitizens and especially to Middle Eastern men. </p>
<p>
National emergencies always create an uneasy line between the country's<br />
collective security and individuals' civil liberties. The threat of terrorism<br />
makes the line even more uncertain. But at a time when the United States is<br />
trying to make a point about freedom and democracy, secret tribunals are hardly<br />
the way to impress the world. </p>
<p>
Feingold notes that Ashcroft wouldn't be doing what he is doing without<br />
presidential approval. "It's such an error," he said, "to focus only on<br />
Ashcroft." But Ashcroft has become a lot more than a reluctant flak-catcher. A few<br />
years ago, he considered running for the Republican presidential nomination but<br />
instead decided to seek re-election to the Senate seat he ultimately lost. If the<br />
heart-troubled Dick Cheney were not to run for re-election as vice president in<br />
2004, Ashcroft could well be a candidate to replace him.</p>
</div></div></div>Mon, 31 Dec 2001 20:33:01 +0000142300 at http://prospect.orgPeter SchragThe Electric Slidehttp://prospect.org/article/electric-slide
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p></p><p><span class="dropcap">L</span>ate this spring, while hardly anyone was paying attention, the epicenter of the California energy crisis moved east. For a year, the focus had been on the state's misbegotten deregulation scheme and on Democratic Governor Gray Davis's dithering response to the mess it created. But in the past couple of months, there's been a seismic shift in emphasis and onus: to the out-of-state generators, marketers, and pipeline companies that have made exorbitant profits off the crisis; to the do-next-to-nothing Federal Energy Regulatory Commission (FERC) that's failed to cap runaway wholesale prices despite the commission's own finding that rates have not been "just and reasonable," as federal law requires; and to the Bush administration, which has insisted for months that the problem is California's. The state will still have a long, hot summer, but a lot of people outside California will start feeling the heat.
</p><p> Davis has been talking about energy company "profiteers" and "pirates" ever since January. But although he recently hired (at $30,000 a month) Mark Fabiani and Chris Lehane, a couple of heavy media hitters from Al Gore's presidential election campaign, this shift wasn't just the governor's doing. Vice President Dick Cheney's drill-and-burn energy plan certainly contributed, as did the Bush administration's monumental political clumsiness. When the president agreed to a "summit" with Davis late in May--a summit with a governor?--he inadvertently gave Davis a chance to grab media exposure on the Sunday talk shows, on <i>Larry King Live,</i> and in <i>The Washington Post</i> and <i>The New York Times.</i><br /></p><p><br /></p><p>More important, there's the fortuitous defection of Vermont Senator James Jeffords from the Republican Party and the resulting change of control in the Senate--where Jeff Bingaman of New Mexico, a co-sponsor of Dianne Feinstein's bill capping wholesale electric rates for the next two years, is now chairing the Energy and Natural Resources Committee. The new chair of the Committee on Governmental Affairs is Senator Joseph Lieberman of Connecticut, who's already asked the General Accounting Office to investigate price gouging in the industry.<br /></p><p><br /></p><p>They'll have plenty to work with. Evidence that generators and marketers have exploited the situation has been accumulating for months. By now it's common knowledge that wholesale rates, which rarely went higher than $40 per megawatt hour in 1999, sometimes ran higher than $1,900 last year (and in at least one extreme case, nearly $3,900). Electricity that cost the state $7 billion in 1999 could cost as much as $70 billion this year. Not all of this is the consequence of gaming. It's been driven in part by an acute drought, which triggered a shortage of hydropower in the Pacific Northwest, and in part by the high price of natural gas. But since rates charged by a subsidiary of El Paso Corporation have sometimes been five times higher in California than across the border in Arizona, these price spikes may also have been manipulated.<br /></p><p><br /></p><p><br /></p><p><span class="dropcap">E</span>very major study indicates that electricity generators and marketers have exercised market muscle. In March economists at the California Independent System Operator, which manages the state's power grid, calculated that there was no other way to account for overcharges of some $6.2 billion between May 2000 and February 2001. At almost the same time, economist Paul Joskow at the Massachusetts Institute of Technology and economic analyst Edward Kahn in San Francisco concluded in a paper published by the National Bureau of Economic Research that there's "considerable empirical evidence ... that the high prices experienced in the summer of 2000 reflect the withholding of supplies from the market by ... generators and marketers."<br /></p><p><br /></p><p>
</p><p> A similar estimate was recently issued by Severin Borenstein, director of the University of California Energy Institute, and his colleagues, who "very conservatively" calculate the overcharges so far at $4.5 billion. Even more suspicious is the fact that price spikes occurred not merely at times of peak usage but at off hours and in cool months--when no one had ever seen a price spike before--and that there were unprecedented numbers of unscheduled plant outages during those times. The overcharges weren't all attributable to suppliers under FERC jurisdiction; California's largest municipal utility often had surplus power and sold it back into the state's grid at equally exorbitant rates. But it was the market leverage of a small number of generators and marketers in Texas and North Carolina, combined with a lack of effective retail price signals to dampen demand, that made those extortionate wholesale rates possible.<br /></p><p><br /></p><p>Little of this behavior--perhaps none--may be illegal. Absent collusion between suppliers, there is no violation of the antitrust laws. But it adds plenty of fuel to the political fire. Much of California's energy industry, largely composed of independent generators doing what regulated utilities had once done, hardly existed until deregulation began in the mid-1990s. The immense Houston-based marketer Enron--a global broker of commodities, electricity, gas, and broadband fiber-optic communications lines (the new thing in "energy")--is supervised by nobody. Through mergers and acquisitions, El Paso Corporation (formerly El Paso Natural Gas Company, a modest pipeline company based in western Texas) has become one of the biggest gas companies on earth. In the wake of the dot-com fizzle, energy IPOs became the darlings of Wall Street. As one broker put it, "They're in the driver's seat."<br /></p><p><br /></p><p>And they haven't been shy about exercising their clout. In the 2000 election cycle alone, energy companies--including utilities and the older oil-and-gas sectors, many of them known for their close connections to Bush and Cheney--contributed more than $64 million to political campaigns (double the $32 million they put up in 1992), of which 75 percent went to Republicans. Among the biggest donors were Enron (nearly $2.5 million), Southern Company ($1.4 million), El Paso Corporation ($843,000), and Reliant Energy ($822,000).<br /></p><p><br /></p><p>More telling, perhaps, is the recent disclosure by investigative reporter Lowell Bergman (working both for <i>The New York Times</i> and the PBS program <i>Frontline</i>) of a conversation between Enron Chairman Kenneth Lay, a close friend and major financial supporter of George W. Bush, and Curt Hébert, a free market ideologue and the chairman of FERC. As Hébert tells it, Lay offered him a deal: If Hébert would support Enron in its effort to gain access to transmission lines controlled by Southern Company, Lay would use his influence with Bush to keep Hébert in the FERC chair. Lay's version has it that Hébert asked for his support--but there is no doubt that the conversation took place. Bergman also reported that Duke Energy Corporation, the subject of investigations about overcharges, made a secret offer to Governor Davis to refund unspecified amounts if the state would drop all investigations and lawsuits against the company.<br /></p><p><br /></p><p>But the clincher, both as symbol and driver of the new focus on the marketers, was "Blackout," Bergman's <i>Frontline </i>program, which aired June 5 on many PBS stations. The show was not about Davis's failure to raise retail rates before Pacific Gas and Electric Company declared bankruptcy, or about what Cheney called the governor's "harebrained scheme" to buy the wholesale power that the state's uncreditworthy utilities can no longer purchase, or about the predictable standoff between Bush and Davis about temporary re-regulation of wholesale prices in the western market. It was about the cozy relationship between the energy companies, the Bush White House, and federal regulators, and the inability of consumer groups to secure any access at all; about Cheney's lame declaration that "there's not a lot you can do"; about FERC's failure over a period of some 18 months to investigate evidence--including an internal memo about manipulation--that El Paso Corporation had been rigging California gas prices; and about the influence and insouciant arrogance of energy industry executives who regard themselves as the heroes of a market that threatens the sixth-largest economy on earth.<br /></p><p><br /></p><p><br /></p><p><span class="dropcap">B</span>y sheer coincidence, 2001 is the 100th anniversary of the publication of <i>The Octopus,</i> Frank Norris's seminal populist novel about the battle of California wheat farmers against the stranglehold of the Pacific and Southwestern Railroad (a fictionalized Southern Pacific Railroad), which controls freight and interest rates and dominates state government with savage thoroughness. Like today's energy executives, the railroad's president turns out to be not a monster but a genial fellow who's certain that his actions are dictated by economic laws.<br /></p><p><br /></p><p>
</p><p> Look at a map of the U.S. pipeline holdings of El Paso Corporation or at the earnings and wholesale-pricing practices of the oligopoly of marketers and generators in California in the past year. You may not see an octopus, but you'll get a rich understanding of the impulses that, a century ago, led to regulation of railroad-freight rates and, eventually, utilities. FERC Commissioner William Massey, a lone dissenter, told Bergman that "it's long past time for the agency to step in." If it does not, he said, "the market will fail" and "consumers will rise up in a political revolt." The Bush administration may still be slow to budge. But politically and economically, it's now a whole new game. </p>
<p></p><p></p>
</div></div></div>Wed, 19 Dec 2001 19:15:56 +0000142085 at http://prospect.orgPeter SchragThe Populist Road to Hell: Term Limits in Californiahttp://prospect.org/article/populist-road-hell-term-limits-california
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p><font class="nonprinting"><font size="+3">T</font>here are all sorts of ironies in the term-limits movement that has swept the country in the past six years. The most obvious is that while Congress has been the prime target, it is the state legislatures that have (so far) taken the hit--some 20 states have imposed legislative term limits in the past six years, all but one through the initiative. And while generally regarded as populist, the term-limits cause in some states has depended on a few conservative deep pockets, such as Kansas oil billionaires Charles and David Koch. In California, the deep pockets were those of a conservative Los Angeles politician, Pete Schabarum, who recently retired after five years as a legislator and 19 years as a county supervisor--no term limits for him. Since the law prevented Schabarum from keeping for himself the $1 million-plus he still had in his campaign treasury, he decided he would use it to buy his fellow citizens a term-limits initiative. </font></p>
<p><font class="nonprinting">Term limits were not, in other words, just the result of a wild round of coincidental dissatisfaction that happened to sweep every state that had the initiative in its constitution. The legislatures of Maine and California, Ohio and Idaho, Oklahoma and Michigan, didn't all turn into swamps of iniquity at the same time. But since qualifications for Congress, as the Supreme Court recently reaffirmed, are established in the Constitution--states cannot tinker with them. So it was the state legislatures that got hit and it's in the states that term limits have stuck. </font></p>
<p><font class="nonprinting">Another source of irony, perhaps the most significant, is that just as term limits begin to bite, Congress is about to turn a vast range of highly complex social policies--welfare, Medicaid, food stamps--into block grants, transferring responsibility to those same state legislatures, many of which will no longer have senior members with more than six or eight years in office. And so by some strange working of the popular will, the country will take some of government's toughest decisions out of the hands of legislators with long experience and deliver them into the hands of amateurs. </font></p>
<p><font class="nonprinting">California's recent experience may signal what we can expect: gridlock, bitter partisan hostility, and greater reliance on special interests for the expertise required to write complex legislation. </font></p>
<p> </p>
<p> </p>
<hr /><h3><font class="nonprinting">BITTER FRUIT</font></h3>
<p><font class="nonprinting">In November 1990, California became one of the first of the 20 states to adopt term limits--three two-year terms in a lifetime for the state Assembly, two four-year terms for the state Senate. And because its limits are among the most stringent, virtually all the state's legislators will be, as the phrase goes, "termed out" at the end of 1996. Thus California once again becomes the first major test of yet another grand plebiscitary experiment. The only other state where term limits kick in this year is Maine, which has a population equal to about 3 percent of California's and a part-time legislature with little professional staff. After the November 1996 election, none of California's 80 Assembly members will have had more than four years' experience. After the 1998 election, only a few of 40 state senators--those who were first elected in 1992--will have more than six. </font></p>
<p><font class="nonprinting">So far the results aren't pretty. Contrary to the rosy predictions of such term-limits advocates as George Will, California has not entered a golden age of "civic republicanism." Nor has Proposition 140, the term-limits initiative, brought the state perceptibly closer to the "government of citizens representing their fellow citizens," which Schabarum promised voters in his ballot argument six years ago. </font></p>
<p><font class="nonprinting">Nor has it done much, quoting the ballot argument again, to "remove the grip that vested interests have over the legislature [and] put an end to the Sacramento web of special favors and patronage." What it has done is send a new generation of politicians to Sacramento who are long on partisanship and painfully short on both legislative experience and policy background--and, worse, often seem not to care. </font></p>
<p><font class="nonprinting">That's not to say that the proponents were all wrong. Because of term limits, the California Senate, one of whose members has been in public office since 1938, will cease to be what one legislator unkindly called "the geriatric ward of California." That presumably will be true in a lot of other states as well. High turnover may cause some legislatures to become more diverse in both gender and ethnicity, though that hasn't yet happened in California. It will become much harder for Assembly speakers or Senate presidents, none of whom is likely to serve more than two years, to accumulate either the power that their predecessors had or the dispensable political campaign funds on which much of that power was based. The personal arrogance and indifference of some long-term members may become a thing of the past. </font></p>
<p><font class="nonprinting">But anyone looking for a new generation of citizen-legislators will probably look in vain. By general agreement, the 1995 session of the California legislature was probably the most mean-spirited and unproductive in memory, a unique combination of instability, bad behavior, political frenzy, and legislative paralysis. In the past year, California has had three Assembly speakers, two Republican Assembly leaders, two Republican Senate leaders, and six special elections, not counting runoffs. These included three recalls and there will almost certainly be more before the 1996 general election. In effect, we've witnessed an accelerating game of musical chairs prompted by the search of the nearly termed-out for jobs of longer and more secure tenure: as lobbyists, consultants, or academics, or in other public offices. That, in turn, has produced an almost continuous battle over the speakership and with it an unprecedented round of fratricidal vendettas stemming from the attempts of a group of clumsy and inexperienced Assembly Republicans to punish those who were insufficiently loyal to their caucus. </font></p>
<hr size="1" /><center><font class="nonprinting"><a href="/subscribe/"><img alt="Subscribe to The American Prospect" border="0" src="/tapads/mini_subscribe.gif" /></a> </font></center><br /><hr size="1" /><h3><font class="nonprinting">CALIFORNIA SCHEMING</font></h3>
<p><font class="nonprinting">A short reprise: In November of 1994, Republican Senator Marian Bergeson, a ten-year veteran of the legislature, knowing she must leave office by 1996, runs for, and wins, a seat on the Orange County Board of Supervisors, thereby setting up a special election in March that's won, after a runoff in June, by Republican Assemblyman Ross Johnson. This leaves a vacancy in the Assembly, prompting another special election, held in September. In the meantime, Republican Assemblyman Dick Mountjoy, who would have been termed out in 1996 and is looking for a place with more potential, has won a special election for the Senate seat vacated by Senator Frank Hill, who was removed from office in the summer of 1994 after his conviction on a bribery charge. But because of a closely divided Assembly, and a quirk in state law, Mountjoy delays giving up his Assembly seat even after his Senate victory so that he can cast his vote for a Republican speaker. </font></p>
<p><font class="nonprinting">In the course of that maneuvering, the Republicans become so paranoid about the ability of the longtime Democratic speaker, Willie Brown, to outfox them that one of their members, a former sheriff's deputy named Larry Bowler, cuts the wires of the internal microphones in the caucus chamber where they meet out of fear that Democrats might be listening in. Eventually, in what Republicans call a coup, the Democrats, with the help of one Republican defector, Assemblyman Paul Horcher, oust Senator/Assemblyman Mountjoy from the Assembly and return Brown to the speaker's chair. Mountjoy's Assembly seat is thereupon filled in yet another special election. </font></p>
<p><font class="nonprinting">In anger and revenge, Republicans organize a successful voter recall against the defecting Horcher, who is replaced by Assemblyman Gary Miller. The Republicans also organize a recall against Assemblyman Mike Machado, a Democrat, whom they accuse of breaking a promise not to vote for the Democratic speaker. That recall fails miserably, and Machado files an $800,000 claim with the state, not yet settled, under a law allowing public reimbursement of expenses to the survivor of a recall. In the meantime, Willie Brown, who also will be termed out in 1996 and is now running for mayor of San Francisco, steps down as speaker, but since Republican Assemblywoman Doris Allen is angry at the way she's been treated by the leaders of her caucus, she, like Horcher before her, refuses to vote for the Republican leader, Jim Brulte. (Also termed out, she seems to feel no fealty to her caucus.) Instead, she allows herself to be elected speaker of the nearly evenly divided house with the unanimous votes of the Democrats, plus her own vote, over the unanimous opposition of her Republican colleagues. Allen thus becomes the target of yet another GOP recall, which takes place in November 1995. By September, having succumbed to the harassment and invective of her GOP colleagues, she resigns the speakership, but not before she manages to describe them, in one very public statement, as "power-mongering males with short penises." It was that kind of year. </font></p>
<p> </p>
<p> </p>
<hr /><h3><font class="nonprinting">THE COST OF LIMITS</font></h3>
<p><font class="nonprinting">This chain of intrigue and conflict--and the resulting legislative gridlock and partisan hostility--would probably not have been half as severe had it not been for another development: a legislative redistricting by judicially appointed special masters after the 1990 census that so evenly divided districts that it was hard for either party to get undisputed control of the lower house. If we were living in a less ideologically unforgiving time or place, there might also have been more compromise and professional respect among the members. </font></p>
<p><font class="nonprinting">But term limits themselves send the message that experience is not as important as ideological purity and faithful representation of the voters of one's district. Government, said Phil Isenberg, a pragmatic Democratic assemblyman and one of the legislature's most thoughtful members, who will himself be termed out in 1996, is not "like filling sandbags in the flood"--something that a citizen does on a temporary basis and then returns to normal life. During much of 1994, Willie Brown, who has been in the Assembly for more than 30 years and was its speaker for 15, tried to train a new generation of Democratic leaders--potential speakers, chairs of key committees, and all the rest. But the effort seems to have had only marginal success at best; no one who has been there four years or less has learned enough about California's complicated system of government. Under term limits, moreover, the payoff is so limited. Who wants to stay up all night learning brain surgery when he can only practice for two years? Therefore, Brown told <i>Los Angeles Times</i> reporter Daniel Weintraub, there is going to be no "central force, no central person, who is really responsible or accountable, everyone just doing their own little number." Next year, the fights among Democrats may become as fractious as those among Republicans. </font></p>
<p><font class="nonprinting">The effects will be less severe in the Senate, with its eight-year limits and its complement of members who previously served in the Assembly--and still less true in states like Oklahoma, Nevada, and Utah, which have 12-year limits for each house of their legislatures, longer than the average term is now. "The legislative process is remarkably adaptable and resilient," writes Douglas G. Brown, the director of Colorado's Office of Legislative Legal Services, about the likely effects of reforms in that state. But he does not minimize the dangers: "Experienced members know that disagreement is the default position and agreement takes time and compromise and education to achieve. Experienced members can reason by analogy from previous experiences; new members will not know the lessons of the past." </font></p>
<p><font class="nonprinting">Bill Lockyer, California's Senate president, puts it another way: New members arrive "convinced that those people (already in government) have screwed it all up: I'm going to fix it, whatever it is. [But after a while] people tend to meet smart people with different values . . . and they start to say 'Maybe I'm not absolutely right about this.'" With term limits, that is far less likely to happen. </font></p>
<p><font class="nonprinting">What is certain, at least in California, is that term limits have increased instability and reduced legislative experience. Under the state's rigid limits, members begin looking for the next slot from the moment they arrive. The legislature has, in effect, become a bus station where some people have just arrived and others are waiting to leave, and as a result the institution itself does not elicit much loyalty or devotion. In the two-year period between the 1992 and 1994 elections, California had 12 special elections--that's 10 percent of all seats. </font></p>
<p><font class="nonprinting">More than $10 million was spent on these races--more per race than the obscene amounts, now approaching a total of $80 million every two years, spent in regular legislative elections. In addition, it costs the taxpayers of each affected district an estimated $300,000 to $500,000 to run each of these special elections. We are probably already ahead of that pace in this cycle, though exact figures are not yet available, and since there are still 24 Assembly members and 12 senators who will be termed out by the end of this year, the cycle is far from over. The successful recall of Assemblyman Horcher cost the winners $400,000 and the losers $600,000. That's a little high for such a contest, but not extraordinary--and certainly not money that comes in $5 donations raised at neighborhood teas and clambakes. This year, for the first time, as California Common Cause director Ruth Holton observed, political candidates are holding fundraisers in Sacramento--which means that they're shaking down the special interests--even before they're elected. </font></p>
<p> </p>
<p> </p>
<hr /><h3><font class="nonprinting">POLITICAL PARALYSIS</font></h3>
<p><font class="nonprinting">It's too soon to know conclusively how all that will affect policy and the quality of government generally. There's little question that, as the sponsors of California's term limits promised, the flow of money, particularly to members of the Assembly, will be less subject to the control of a powerful speaker like Brown. There simply isn't time for anyone to develop the long-term relationships that Brown, for better or worse, managed with trial lawyers, public employee unions, land developers, and other major lobbies. The Assembly's speaker at the end of the 1995 session was a 32-year-old freshman Republican named Brian Setencich, a former professional basketball player in Europe, who had been in the legislature less than eight months and whose prior political experience was a few years on the Fresno City Council. For the same reason, it will also be hard for anyone to develop the clout to broker deals among various interest groups--which are now increasingly trying to work their own deals directly with individual members--or to keep caucus members in line. </font></p>
<p><font class="nonprinting">That will make it even harder than it has recently been in California to hold votes together and enact any major legislation--indeed, to do anything that takes patient compromise and thus requires the luxury of time and a relatively stable group of bargainers. In the process, it's not only politically complex and divisive issues that have bogged down in California's fractured legislature. Even such matters as the two-thirds vote to place school construction bonds on the state ballot--a vote that was once routine for both Republicans and Democrats--have become increasingly insurmountable hurdles. This summer, for the second time in two years, no school bond measure was approved, despite the fact that California's classrooms are the most crowded and among the most dilapidated in America. </font></p>
<p><font class="nonprinting">But the changing power relationships are only one element contributing to California's policy paralysis. What is at least as important is the declining level of policy experience that term limits foster and celebrate. The California legislature once had a highly professional staff, but the term-limits initiative also required a 40 percent reduction in legislative personnel and funding. </font></p>
<p><font class="nonprinting">Here again is an example of unintended consequences. Most observers agree that for years there had been too many political hacks on legislative payrolls, men and women earning six-figure salaries and cushy pensions to organize fundraisers, staff campaigns, and talk to lobbyists. But the initiative did little to reduce the number of hacks who, in the constant search for money, are needed more than ever. The damage, rather, was done in the nonpartisan Legislative Analyst's office, which studies and evaluates the fiscal effects of the budget and all money bills. The office lost 60 percent of its staff. The budget reductions also decimated the ranks of policy experts attached to various legislative committees--experts on budgeting, water law, taxation, environmental law, education, transportation, and all the rest--who, for the better part of a generation beginning in the mid-1960s, had made California's legislature a model of professionalism. Until 1990, someone from the Legislative Analyst's office appeared and testified at hearings on all major revenue and appropriations bills; after the office's budget was cut, that was no longer possible. </font></p>
<p><font class="nonprinting">There also appears to have been a marked decline in the quality of the work done by committee policy staff, partly because they were shorthanded and partly because the new members seemed to care less. Previously, committee bill analyses were, for the most part, objective statements that laid out the arguments on a bill, pro and con, raised unanswered questions, and tried to suggest the likely effects. Now, they tend increasingly to be taken verbatim from the lobbyists pushing or opposing the measure, or simply from fantasy. That practice seems not to reflect corruption so much as the cult-politics mindset of people who fervently believe that if they hold the correct position on an issue no further information is required. They are not in Sacramento to govern; they are there to enact the agenda that they arrived with. </font></p>
<p><font class="nonprinting">For example, analysis of a bill authorizing a bond issue to buy computers and other new technology for California schools--probably a dubious way of funding such inherently perishable improvements--cited "serious concerns . . . in the technology community regarding overuse of computers by young children. Scientific reports reveal that, as with TV, there is actual physiological damage and impairment to the areas of young children's brains which involve metaphorical thinking and other avenues to higher thinking skills." So far, no one has found those scientific reports, but since this analysis was written for a legislator who once announced that the Air Force had an official witch, no one really expected to. Because term limits leave everyone insecure, said one member, "this place has become a totally risk-averse environment, which is why you have so much stridency and so little achievement." </font></p>
<p><font class="nonprinting">The winners from term limits will be, first, the lobbyists, who are never termed out; second, the governor and the executive branch, which still has budgeting and policymaking expertise; and, third, the bureaucrats, who will stay long after legislators go. Art Agnos, a former legislator and former mayor of San Francisco, now western regional director for the Department of Housing and Urban Development, recently remarked that the real effect of term limits is that "no one will be in office long enough to touch the bureaucrats. . . . They tell us political appointees--the politocrats--that while we're the A team, they're the B team: 'We be here when you come and we be here after you're gone.'" </font></p>
<p> </p>
<p> </p>
<hr /><h3><font class="nonprinting">CYCLES OF FRUSTRATION</font></h3>
<p><font class="nonprinting">California has been on a plebiscitary rampage since the passage of Proposition 13 in 1978; term limits are not likely to be the end of the process. For most of the past two decades, and even before, the state has been going through a continuous cycle of reform and political frustration, with initiative after initiative imposing state and local tax limitations, spending limits, a formula for school spending, term limits, three strikes, and prohibiting public education and other services for illegal immigrants (currently blocked by the federal courts). Each initiative has put still more restrictions on the ability of elected officials--legislators, city councils, school boards, county supervisors--to make choices and set priorities. As each has made it harder for the legislature to function and more difficult for voters to comprehend the system--let alone know whom to hold accountable--yet another remedial ballot measure has sprouted from the resulting frustration. This, in turn, has further restricted the latitude of those who used to be called the people's representatives, which in turn has further exacerbated the impotence of the legislature and has reduced the accountability of those whom the voters elected. </font></p>
<p><font class="nonprinting">The key was Proposition 13, which not only limited the local property tax but gave the state the power to allocate property tax revenues among counties, cities, schools, and thousands of special districts. It thus severely weakened local government and shifted power to a state government whose legislature was itself being hamstrung by a set of uncoordinated populist reforms. Equally important, Proposition 13 and the scores of bills and ballot measures that followed in its wake so divided accountability between the state and the locals (and often among various state and local agencies) that even the simplest things--how to get a new school built, for example--became virtually incomprehensible. As recently demonstrated in Los Angeles, the county or the school board slipping into bankruptcy points to Sacramento for reducing its funding; the state points to the local supervisors and their managers for failing to control mushrooming employee salaries and benefits. </font></p>
<p><font class="nonprinting">They are both correct. In 20 years, California's state and local governments have become a sort of Rube Goldberg machine whose most important product may well be voter alienation. It's said, probably correctly, that only three people understand California school finance, and two of them are lobbyists. More obviously, the post-13 era has been marked by a steep slide in the quality and availability of the state's public services and a sharp rise in the kind of political corruption--sometimes indictable, sometimes not--that thrives in an increasingly unmanageable, demoralized, and unaccountable system. Since 1988, five California legislators, several staffers, and one prominent lobbyist have been convicted on federal bribery or similar charges. </font></p>
<p><font class="nonprinting">Finally, there is the huge effect of the two-thirds vote that California, almost alone among the states, requires in each house of the legislature, not only for the enactment of any tax but, more important, for approval of the annual state budget and virtually every other sort of appropriation. That gives every determined political minority--from welfare Democrats to right-to-life Republicans--the power to extract concessions from the majority, both by blocking additional spending and, in times of stress, blocking desirable spending cuts. It's no coincidence that California's legislature is so often gridlocked for weeks or even months before it can agree on a budget. With the array of new political technologies--from direct mail to television to the Internet--that have evolved since Proposition 13, it's often easier for well-organized and well-heeled groups, on the left as well as the right, to use the initiative, once intended as the people's instrument, to write policy changes into law or into the budget than to get the legislative supermajority that the constitution requires. But it makes it almost impossible to set realistic annual budget priorities. </font></p>
<p> </p>
<p><font class="nonprinting"><font size="+3">T</font>here is no space here to describe the inequities in tax and spending policies, the economic dislocations, and the other Alice-in-Wonderland policy distortions that this process has produced in the past two decades. In any number of places, property taxes on identical parcels in the same neighborhood are vastly different because one parcel was purchased recently (and thus reassessed), while the other has been in the same hands since 1978 and thus is carried on the rolls at 1975 values. And since local communities are now effectively precluded from taxing themselves to improve schools, California's per-pupil spending has declined from fifth or sixth in the nation to 42nd--a decline that started long before the recession that began in 1989. California is the state where accountability has become so entangled that the buck never stops and can never be traced. </font></p>
<p><font class="nonprinting">Given that structural morass, the governmental inexperience that term limits produce can only exacerbate the difficulties of accomplishing anything. California Republicans have some hopes of gaining control of both houses of the state legislature in 1996--they now control one, more or less--but if they succeed, the thing they will learn first and foremost is how limited their ability is to accomplish anything substantial. The cycle of reform and frustration will go on. </font></p>
<p><font class="nonprinting">Of course, California is unique in some of these things. But these days it is hardly alone in its search for quick constitutional fixes--balanced budget amendments, supermajority tax-enactment provisions, term limits and other autopilot mechanisms--in an effort to guarantee what never was and never will be: that government will do the right things without constant attention from a citizenry that seems to have less and less interest in, patience for, or attachment to, its institutions. The excesses and abuses of a distant, overprofessionalized government are legendary and need no further reiteration, but the alternative, in a world as complex as this one, is not some dreamy system of short-term amateurs. California is not so much apart as ahead, a cautionary tale that others ignore at their peril. </font></p>
<p>
<!-- dhandler for print articles --></p>
</div></div></div>Wed, 19 Dec 2001 19:15:55 +0000141294 at http://prospect.orgPeter SchragFeinstein's Rulehttp://prospect.org/article/feinsteins-rule
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p><span class="dropcap">S</span>enator Dianne Feinstein has never been shy about<br />
grabbing hot-button law-and-order issues. So it was hardly surprising in the days<br />
after September 11 to see the California Democrat leading the charge for tougher<br />
visa restrictions and other controls on foreigners in the United States. As she<br />
pointed out, most of the plane hijackers who crashed into the World Trade Center<br />
and the Pentagon had been in this country legally.</p>
<p>
Feinstein proposed a six-month moratorium on all student visas. After<br />
heated opposition from university presidents, whose institutions crave<br />
foreign-student tuition, the idea was quietly dropped. But it was soon succeeded<br />
by a sweeping Feinstein bill, co-sponsored by Republican Senator John Kyl of<br />
Arizona, that would require tougher screening of all visa applicants, mandate<br />
better federal tracking of foreign visitors, require a background check before<br />
issuing any student visa, and block all student visas to individuals from<br />
countries that the State Department deems sponsors of terrorism.</p>
<p>
Conspicuous by its absence was any revision of the dubious H-1B visa program,<br />
a Feinstein favorite. In theory, these special visas, now totaling nearly a<br />
million, go to foreign high-tech workers in electronics and similar industries.<br />
Feinstein--like her fellow California Democrats Senator Barbara Boxer and<br />
Congresswoman Zoe Lofgren--has zealously supported them. Under the H-1B program,<br />
American companies (and some non-American ones) can bring in foreign engineers,<br />
programmers, and other techies for jobs that they claim can't be filled by U.S.<br />
workers.</p>
<p>
In October 2000, even as the dot-coms were failing at eye-opening speeds and<br />
the sinking Nasdaq was giving the words "Silicon Valley" an entirely new meaning,<br />
Congress rushed through a bill that raised the annual number of H-1Bs from<br />
115,000 (itself up from 65,000 in 1998) to 195,000. With renewals, the visa is<br />
good for six years. </p>
<p>
To be sure, Feinstein isn't solely responsible. Silicon Valley, led by TechNet<br />
and other industry groups, has become a master at intense, bipartisan lobbying.<br />
The industry spent an estimated $8 million in "soft money" in the past year<br />
alone. The Senate--where Spencer Abraham, now George W. Bush's secretary of<br />
energy, got $43,000, and Senator Orrin Hatch of Utah received $36,000--passed the<br />
bill 96 to 1. The House, where some 350 members collected an average of $5,000 in<br />
high-tech contributions, approved the bill by voice vote in the middle of the<br />
night.</p>
<p>
The professed rationale was that things were desperate: The industry claimed<br />
that it simply couldn't find enough people who knew the coding or the software.<br />
Without the bill, said the Information Technology Association of America, 850,000<br />
jobs would go unfilled. Oddly, many high-tech companies--those that weren't<br />
failing altogether--were already laying off thousands of people.</p>
<p>
<span class="dropcap">E</span>ven in good times, were employers really that<br />
strapped? Or were<br />
they simply trying to cut costs by hiring people from India, China, or Pakistan<br />
to work for $40,000 in place of Americans who had earned $55,000 or $60,000--and<br />
thereby giving themselves the muscle to squeeze both kinds of employees? H-1B<br />
workers are eager for U.S. jobs that pay three times what similar jobs pay at<br />
home. But they are subject to deportation if they're fired and are vulnerable to<br />
exploitation in a number of other ways that, together, create a system<br />
approaching indentured servitude. Many are employed by "body shops"--so-called<br />
consultancies, the biggest of them foreign owned, that operate roughly like the<br />
coyotes who supply Mexican farmworkers to agricultural employers ("outsourcing"<br />
them to software companies when there's work and "benching" them at low wages<br />
when there's not). "If they complain," a veteran (unemployed) software engineer<br />
told me, "they're reminded that if they don't like how they're treated, there's<br />
plenty more--in India or Taiwan--where they came from."</p>
<p>
The contention that there's a real shortage of American techies was<br />
debunked long before high-tech began to tank. Before the recession, said Norman<br />
Matloff, a professor of computer science at the University of California at Davis<br />
and a longtime critic of H-1B, only 2 percent of the experienced software<br />
engineers who applied for jobs were hired. Many never even got interviews. "If<br />
employers were so desperate to hire," Matloff said, "they couldn't afford to be<br />
so picky." There appears to be endemic ageism in the industry: Even applicants in<br />
their forties are not just too expensive, but too old.</p>
<p>
Rob Sanchez, an Arizona engineer who runs the only reliable database in the<br />
field (<a href="http://www.zazona.com/ShameH1B/">www.zazona.com/ShameH1B/</a>),<br />
estimates on the basis of federal immigration<br />
records that after the recent layoffs, there are still as many as one million<br />
H-1B visa holders in this country: more than 700 at Hewlett Packard and hundreds<br />
of others at scores of companies--including Microsoft, Motorola, Lucent, and<br />
Oracle--as well as those countless body shops. Thousands work on university<br />
campuses and at federal laboratories, including the Lawrence Livermore nuclear<br />
lab that the University of California runs for the U.S. Department of Energy. (It<br />
might interest Feinstein that two Chinese H-1Bs at Lucent were arrested and<br />
charged with industrial espionage earlier this year.) But because the feds don't<br />
track them, nobody really knows how many H-1Bs are in this country or how the<br />
recent layoffs have hit American high-tech workers versus foreign ones. </p>
<p>
With the exception of a few overmatched organizations like the Programmers'<br />
Guild and established anti-immigration groups, there's little organized<br />
opposition to the H-1B program. On the contrary, last March, as the dot-coms sank<br />
deeper into recession, the generally sober Committee for Economic Development<br />
called for further liberalization.</p>
<p>
As the economy continues to deteriorate, the events of September 11 could well<br />
fuel another round of anti-immigrant backlash. Like Feinstein's bill, President<br />
Bush's quick abandonment of his fuzzy proposal to regularize the status of all<br />
illegal Mexican aliens provides ample evidence of that. Such backlash would be<br />
deplorable, as it always is. But even at full employment and before September 11,<br />
there never was much justification for a foreign-worker program as huge as H-1B.<br />
There's even less now.</p>
<p> </p></div></div></div>Wed, 19 Dec 2001 19:14:04 +0000142383 at http://prospect.orgPeter SchragGlobalization and Innocencehttp://prospect.org/article/globalization-and-innocence
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p>In the last few weeks we've heard endless reiterations of the phrase about the world never being the same again. And who can really deny it? Anyone looking at the scene where the World Trade Center used to be, or trying to imagine what madness would drive human beings to such acts, could hardly think otherwise. At the same time, we can admire the Israelis, or dare one say it, even the Palestinians, for not telling us: "Now you know what it feels like." Many must be thinking it.<br /></p><p><br /></p><p>But if you've lived long enough, and lived in the right places, you've probably had the same thought a half-dozen times in your life: What will the next "normal" look like? I first had it, living in Brussels, in May 10, 1940, the day the Germans invaded Belgium, the Netherlands, and Luxemburg. I was nine. Two weeks later, we were caught by the German army -- my mother and grandmother and I -- in the French city of Boulogne, and like hundreds of thousands of other refugees, sent back where we had come from. A year later, walking across frontiers at night, we escaped from Brussels, through the occupied part of France and eventually to Spain and Portugal. Had we waited a few months longer, or had we been less lucky on those frontiers -- we would almost certainly have joined the six million others who were exterminated in the camps of Auschwitz, Buchenwald, and Bergen-Belsen.<br /></p><p><br /></p><p>Many of us recall a similar sensation -- not the personal fear, but the larger anxiety -- when John F. Kennedy was assassinated in November 1963. There was television then, and so it was all there before our eyes, the endless replays of the Zapruder film of the bullets smashing Kennedy's head in his open car, the murder of Lee Harvey Oswald in the Dallas jail, the long, somber funeral cortege in Washington for the slain young president, the endless worry and uncertainty, continuing almost to this day, about the dark forces -- the Pentagon? The CIA? Fidel Castro? The Russians? The mob? The right wing? -- that planned and carried out this assassination.<br /></p><p><br /></p><p>Then, too, there was a similar question: What kind of world will we find when we come out from our dens and living rooms into the bright light of the post-Dallas reality? Then, too, we spoke about the end of American innocence, about our new and unfamiliar sense of domestic vulnerability. These things happened elsewhere, but despite our own history of presidential assassinations -- Lincoln, Garfield, McKinley -- we thought ourselves immune. And then, of course came Martin Luther King, Jr., and, a bare two months later, Bobby Kennedy. If there was no organized connection between these assassinations, what dark thing was loose among us that would strike down three of our brightest and most promising leaders in so short a time?<br /></p><p><br /></p><p>In the days after the attacks on September 11, there were also a lot of comparisons with Pearl Harbor, distinguished only, as many said, by the fact that in 1941 we knew who the attackers were: The planes were marked, the enemy visible, the target military, not civilian. And the damage, terrible as it was, the loss of life, took place thousands of miles from our own shores on an island, not yet a state, that then seemed a lot more remote than it is now. Yet then, too, a world seemed to come to an end, and another was being formed. Three and half years later, it burst upon us with the force of 20,000 tons of TNT over the skies of Hiroshima and Nagasaki.<br /></p><p><br /></p><p>As Americans, unlike the French or the British or the Irish, or the Israelis -- or the Cambodians, Vietnamese, Bosnians, Kosovars, Rwandans -- we take our domestic safety, long secured by two oceans, almost as a birthright, an entitlement. (Even our Constitution leaves no real place for chronic, partial war. It presumes we are either totally at war or totally at peace.) It's why we tend to be so indifferent to, and ignorant about, the rest of the world and why, when some foreign force threatens us, we are so enraged and fight so fiercely, even ruthlessly, to put it down. We are willing to go to any length, pay almost any price, for the privilege of our disengagement. Until the first plane hit the first tower at the World Trade Center, George W. Bush's unilateralism -- the disdain for treaties and international opinion -- was a shining example of how deeply attached we were to our indifference.<br /></p><p><br /></p><p>We probably have, as Frank Rich recently wrote (in a piece called "The Day Before Tuesday" in <i>The New York Times</i>, "lost our illusion of impregnability." Maybe we've even been awakened from the dream "that we could have it all without having to pay any price, and that national suffering of almost any kind could be domesticated" and thus purged of its pain. For the past months, indeed years, we've been diverted by an ever, more marginal set of trivial matters: shark attacks, TV "reality" shows, Gary Condit.<br /></p><p><br /></p><p>But predictions about our sudden, and presumably welcome, loss of illusion are hardly a sure thing. The attribute Americans have yielded most grudgingly has been our innocence. It's been both a great national handicap and a nearly unique source of strength. We are about to discover, for example, how much of our civil liberties and personal freedom have depended on that innocence. Conversely, our innocence is also one of the things that always infuriated Europeans about us -- and very possibly one of the things that helps fuel the rage of the terrorists who attack us. <i>We know their weakness and shall show them that they are not immune from the consequences of their arrogance.</i> (Like their fellow fundamentalists in the Middle East, Jerry Falwell, and Pat Robertson also think we had it coming: This was God's punishment upon us for the abortionists, the feminists, the homosexuals, the civil libertarians who roam among us. Our guilt is our innocence.)<br /></p><p><br /></p><p>The rhetoric that emerged soon after the attacks -- the calls to send the bombers, to retaliate, to make war, the declarations (as one talk-show host said) that while innocents are killed in war, "you have to accept collateral damage" -- indicates that the old mind-set is still our gut response: Hit the bastards hard and get it over with. Or as Bush says: eradicate the evil of terrorism.<br /></p><p><br /></p><p>The true measure, the real horror, of this terrorism and what it portends for the American world just emerging is that it defies the surgical strike, so-called, the quick campaign. We are not, as George M. Cohan's great song said, going to get it "over, over there," anytime soon. Almost certainly there are more determined bombers out there --maybe bombers with far more lethal weapons than just a Boeing 757 packed with fuel. And out there could mean very close to home.<br /></p><p><br /></p><p>No Western country has been hit with the ferocity, or at least with the anonymity, that hit this country on September 11. But beginning with Guernica and extending through the systematic starvation of millions of Russian peasants, through the death camps, to the devastation of London and Coventry, through Pol Pot's atrocities and the bombings of countless busses and schools and McDonald's in Israel, civilians, including children, have been the targets of mass murder. Each time, some people have asked: How could they?<br /></p><p><br /></p><p>The world -- our world -- will indeed never be the same again. America, as Daniel Schorr said, is indeed "being re-made" in ways that remain largely unpredictable but may never be as free again, and will almost certainly depend in part on the wisdom and historical perspective of our leaders. What's almost certain is that the globalization we have simultaneously celebrated, banalized, and feared is coming at us in ways that no one ever anticipated. Within hours of the attack, Bush and Secretary of State Colin Powell were on the phone pleading for an internationalism that the administration in its retro-innocence had spat on when it had words like global warming, biological warfare, or land mines attached to it.<br /></p><p><br /></p><p>We have much to learn from the rest of the civilized world -- not necessarily in order to emulate, but to choose the lessons that we might adapt, in our own imaginative ways, for our own circumstances. The September attacks have already driven the country beyond the trivialization of recent years, have very possibly begun to restore some sense of community (which, contrary to our Robert Putnams, is also not an unmitigated virtue), and powerfully revived our appreciation of the importance of government: Nobody is now saying, as some people did only a year ago, that in our new high-tech world the Internet and the free market will do it all by themselves. That belief was perhaps the most extreme expression of our pathetic innocence. That, at least, we are well rid of.<br /></p><p></p>
</div></div></div>Wed, 19 Dec 2001 19:11:44 +0000139581 at http://prospect.orgPeter SchragThe Longest Ballothttp://prospect.org/article/longest-ballot
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p>&#13;</p>
<p>March 7 is primary day in California, Ohio, New York, and most of New England; it could all but decide who will be the major party presidential candidates this fall. But of all the states, as one campaign consultant said, California "is the killer." And California this year will conduct one of the more extraordinary and potentially bizarre elections ever held.&#13;</p>
<p>&#13;<br />
&#13;<br />
&#13;</p>
<p>There'll be primary contests for legislators, members of Congress, and countless local officials, and there'll be the usual long list of state ballot measures--20 in all, including 10 voter initiatives on everything from campaign finance reform to gay marriage, juvenile crime, tobacco taxes, and Native-American gaming. In a lot of places, there'll also be local referenda. But in addition, there'll be something that's almost certainly unique and that in California, with its large prize of convention delegates (roughly one-fifth the number needed to win), has the potential for creating no end of confusion, party embarrassment, and voter alienation.&#13;</p>
<p>&#13;<br />
&#13;<br />
On the same day, and on the same ballot, there'll be <i>two</i> presidential primaries. The first is the balloting to choose delegates for the respective party conventions; in this primary, only the votes of registered party members will be counted. The other is a beauty contest in which everyone's vote will be counted and reported by election officials but which will determine nothing except perhaps the next day's headlines.&#13;</p>
<p>&#13;<br />
&#13;<br />
Many voters won't know that--there'll be nothing on the ballot to tell them. Fewer still understood it before February 7, which was the last day they could re-register with a different party affiliation. Thus when an independent punches his ballot next to the name of John McCain, there's a fair chance he won't know that his vote will have no bearing whatever on who will be the candidate of the Republican Party. Ditto for the Green Party member who thought her vote for Bill Bradley or Al Gore would represent something more than a muffled cheer. Otherwise identical ballots will be color coded according to the voters' party identification, to allow them to be counted separately. (In most counties, the Green Party ballot will be lavender.)&#13;</p>
<p>&#13;<br />
&#13;<br />
This goofy system is yet another unintended consequence of California's accident-prone initiative process--specifically Proposition 198, which the voters approved in 1996. Proposition 198 created a blanket primary in which any voter can cast a ballot for a candidate of any party. Thus Democrats can vote for Republican assembly candidates; Libertarians can vote for Democrats.&#13;</p>
<p>&#13;<br />
&#13;<br />
But the major national parties refuse to recognize votes from nonmembers in presidential primaries, even though membership often means nothing more than signing a registration card on election day. California thus faced a choice: Stick to its blanket primary and allow voters absolutely no direct impact on the selection of candidates for the 2000 election, or modify the system for presidential voting only. Not surprisingly, the legislature, having already moved up the primary date to give California more clout, chose the latter, which is how the state got this camel of an election.&#13;</p>
<p>&#13;<br />
&#13;<br />
Both Bradley and McCain, who've had particular appeal among independents, have made efforts to get the word out, as has Secretary of State Bill Jones, but only with limited success. A few weeks ago, members of McCain's skeletal organization said they'd be happy if they got 30,000 of the state's two million independents (roughly one-seventh of all registered voters) to re-register. (In what was yet another sign of things to come, the McCain people said they hoped to use the Internet to overcome their lack of funds and organization.) But they sounded as if they'd be lucky to get even a small fraction of that 30,000. Thus, while it's theoretically possible that there could be a significant gap between the vote in the beauty contest and the vote that actually counts for delegates, it's unlikely to make much difference for McCain in the Republican winner-take-all system, assuming he even makes it to California, much less for Steve Forbes or the other Republican dwarfs in the race. In a January poll by PPIC, the Public Policy Institute of California, Texas Governor George W. Bush not only led McCain 56 to 11 among likely Republican voters, he also led him among all likely voters by a margin of 28 to 8. McCain would have to close a huge margin to win California's delegation.&#13;</p>
<p>&#13;<br />
&#13;<br />
In the Democratic primary, however, delegates are chosen roughly in proportion to the primary vote. In last month's PPIC poll, Bradley trailed Gore 21 to 48 among Democrats and 14 to 19 among independents and members of the minor parties. If Bradley can spend enough money for television and direct mail to reduce those gaps, California's imponderable system could indeed make a difference. It could also greatly increase the anger and frustration of independent voters, most of whom thought that when the blanket primary was approved they got the right to vote for anybody on the ballot--and to have the vote count.&#13;</p>
<p>&#13;<br />
&#13;<br />
The real beneficiary of the California primary system could be the man who helped create it, U.S. Representative Tom Campbell, the moderate Silicon Valley Republican who sponsored Proposition 198 four years ago and who's now running against two GOP conservatives for the chance to challenge U.S. Senator Dianne Feinstein in November. Campbell, who lost a Senate primary back in 1992, always argued that the closed primary system favored candidates on the Democratic left and the Republican right, despite the fact that the average Californian, in his view, was a centrist rather like himself. Since the votes of nonparty members do count in this contest, Campbell is the odds-on favorite to win the primary this year. But unless he gets a heavy infusion of cash that will allow him to generate a lot more name familiarity, his chances against centrist Feinstein are small. In January, she led him 50 to 12, with 26 percent undecided.&#13;</p>
<p>&#13;<br />
&#13;<br />
&#13;</p>
<p>But perhaps the biggest part of the California story this winter has implications beyond the outcome of this primary or even of the general election in November--and that's the big-buck efforts of GOP leaders to broaden the appeal of a party that's effectively marginalized itself almost everywhere, but especially in California, and particularly among Hispanics. Given the effects of the ill-disguised immigrant bashing in Governor Pete Wilson's 1994 re-election campaign and his strong support for Proposition 187, the measure that would have denied schooling and all other social services to illegal aliens, that's hardly an easy task. When Wilson first ran for office in 1990, he got roughly 40 percent of the Hispanic vote. In 1998, a year in which Republicans won only one minor statewide office in California, Republican Dan Lungren, who was trounced in his race for governor, got less than 20 percent of the Latino vote. Worse for the GOP, between 1994 and 1998, Latino voter turnout, while still low, rose significantly, increasing from 9 percent to 13 percent of the electorate. In light of the rapid growth in California's Latino population--and indeed in the Latino population nationwide--the Latino vote becomes increasingly important.&#13;</p>
<p>&#13;<br />
&#13;<br />
&#13;</p>
<p>With Bush, the GOP is confident it can begin to capture, or recapture, not only a lot of moderate Republican women, but also a respectable part of the Latino vote, which will be crucial in any close California election and thus to winning California's 54 electoral votes. Bush has muted his abortion stance; he's no immigrant basher; he's not made an issue of bilingual education as many California Republicans did; he went out of his way to appeal to Latinos in Texas--and got more than 40 percent of the Hispanic vote in his 1998 re-election campaign. In January, the GOP unveiled a set of commercials in both English and Spanish that it intends to run before March 7 to persuade the 25 percent of Latino voters who are uncommitted to either party that the GOP is their kind of place. The PPIC survey in January showed that in a matchup between Bush and Gore, Gore would take 58 percent of the Latino vote, against Bush's 40 percent. But due to the money the Bush campaign is likely to have in the fall, and the fact that Bush may have almost a free ride in the primary, that gap could easily close.&#13;</p>
<p>&#13;<br />
&#13;<br />
More important, Bush seems to be trying to move control of his party away from the nutcake fringe--the Newt Gingriches, the Tom DeLays--that's controlled it, both in Congress and in California. A year ago, even after the GOP was trounced in California, the California Republican leaders overwhelmingly endorsed Gary Bauer for president and elected as state chairman an arch-conservative named John McGraw who promptly declared that "killing our babies" was "the issue of the century." But last fall, after business gagged and contributions began to dry up, a pragmatic California legislator named Jim Brulte, who'd been a Bush co-chairman in California, used the Bush clout to put the party under what Brulte called "adult supervision." With Bush's help, Brulte, who's now the state party's finance director, got the money flowing again, thus digging the party out of debt, and moved the agenda of his legislative caucus from the old right-wing litany--abortion, immigrant bashing, and the right to own guns--to a more voter-friendly agenda: reducing student fees at the state's universities, which he correctly described as a middle-class tax cut, and putting much of the state's rising revenues into its underfunded public schools. When Democratic Governor Gray Davis gave his State of the State speech in January, Brulte said he could have given that speech himself. So could George W. Bush.&#13;</p>
<p>&#13;<br />
&#13;<br />
In a state whose politics often foretells and influences national politics, that change of course is significant in itself. But it's equally significant for what it says about Bush's appeal to the professionals in his own party and, beyond that, perhaps to the voters in November as well. For the past five years, Republicans, in thrall to Christian conservatives and exhausted ideologies, have fallen all over themselves scrounging for issues, like impeachment and trillion-dollar tax cuts, that Bill Clinton, Al Gore, Gray Davis, and other poll-driven New Democrats haven't seized for themselves. Bush is still stuck in a doctrinaire tax-cut mode, but in moving his party away from Wilson-era wedge issues and toward a spot just to the right of the New Democrat center, he may soon make it imperative for someone to redefine just what it really means to be a Democrat. ¤&#13;<br />
&#13;
</p>
<p>&#13;</p>
</div></div></div>Wed, 19 Dec 2001 19:08:07 +0000141936 at http://prospect.orgPeter SchragWhere the Right Losthttp://prospect.org/article/where-right-lost
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p><font color="darkred" size="+2">A</font>fter the muddled 2000 election and the evenly divided Congress it produced, it didn't take any special wisdom for the pundits to conclude that nobody got a mandate and that voters were too split to send any clear signal. But on some major issues, the electorate spoke with absolute clarity. One such issue was public education. Voters overwhelmingly rejected voucher initiatives in Michigan and California, approved a measure to make it easier to pass local school bonds in California, and supported initiatives to increase funding and teacher salaries and reduce class sizes in Colorado, Oregon, and Washington. </p>
<p>Equally important was the nearly unequivocal vote of no confidence in the nation's repressive drug laws. Of the seven major drug-law-reform initiatives on state ballots, five passed. Easily the biggest was California's Proposition 36, which requires that virtually all persons convicted of nonviolent drug possession be sent to treatment rather than jail or prison; voters endorsed the proposal by a surprisingly large margin--61 percent to 39 percent. [See Peter Schrag, "<a href="../V11-21/schrag-p.html">Declaring War on the Drug War</a>," <i>TAP,</i> September 25- October 9, 2000.] Proposition 36 appears to have won by a larger spread than any other seriously contested issue or candidate in the nation. In addition, voters in Colorado and Nevada approved initiatives legalizing the medical use of marijuana, while citizens in Utah and Oregon elected to liberalize asset forfeiture laws. </p>
<p>Another big winner, for better or worse, is likely to be the initiative process itself. Ever since Vietnam and Watergate, voters have been ever more distrustful of politicians and conventional politics. Increasingly, in the two dozen states that have it, they are inclined to use the initiative to make major policy decisions. On tax policy, legislative term limits, and criminal sentencing; on affirmative action and immigration; on wildlife protection, tougher gun control, and increases in the minimum wage--the center of gravity in policy making is shifting to plebiscitary democracy. </p>
<p><font color="darkred" size="+2">B</font>ecause many of this year's victories included liberal causes, such as new gun control measures in Colorado and Oregon, and because the losers included a number of conservative proposals--among them, initiatives calling for large tax cuts in Alaska, Colorado, and Oregon (though one passed in Massachusetts)--the outcome challenges the widespread belief, held since the start of the 1978 tax revolt in California, that direct democracy is almost entirely an instrument of the right. </p>
<p>Let's look at the issues one at a time. Surely the election's biggest losers were the billionaire sponsors of school voucher initiatives. Tim Draper, the Silicon Valley venture capitalist who almost single-handedly funded California's Proposition 38, was buried by an avalanche of no votes (71 percent to 29 percent), despite the $30 million he spent on the campaign. In addition to Draper's loss, there were the two-to-one defeat of the Michigan voucher initiative funded by Amway founders Betsy and Dick DeVos and the rejection of a broad charter school measure in Washington State sponsored by yet another billionaire, Microsoft co-founder Paul Allen. The election may not have driven a stake through the heart of the voucher movement, but it made clear that any future attempt to secure voters' approval to use tax funds for private-school tuition would have to be much more limited and finely tuned. </p>
<p>The only vouchers now in place--all approved by elected officials, none enacted by initiative--are targeted to low-income students (as in Cleveland and Milwaukee) or to students in failing schools (as in Florida). After his drubbing on November 7, Draper said he planned to try again--this time with something that all voucher supporters can agree on. But he's likely to find it's easier said than done. Like the market-happy Draper, who declared he wanted to create "an opportunity society, not a needs-based society," the religious schools that now enroll most private-school students don't like restrictions on voucher programs. But most moderate voucher supporters, seeking equity for poor kids, want targeted programs; most suburbanites won't support any proposal likely to take money from their public schools. As a result, all previous attempts to push voucher initiatives--most prominently, one in California in 1993, and another in Colorado in 1992--were overwhelmingly defeated. In those instances, it was said that the money of the teachers' unions swamped the relatively meager resources of the voucher proponents. But this year, as Dane Waters of the Washington-based Initiative and Referendum Institute says, the fight was a case of "Goliath versus Goliath." Nobody was outspent, and everyone got his message out.</p>
<p>If the balloting on vouchers and school funding can be read as a vote of confidence for the nation's traditional system of public education, the message on drug policy reform was certainly a vote for change. With this year's wins, the drug campaign--backed by financier George Soros; John Sperling, the founder and CEO of the private, for-profit University of Phoenix; and Cleveland insurance billionaire Peter Lewis--extends a string that began with the passage of medical-marijuana initiatives in 1996 and includes legislative victories in a number of states that now allow the sale of syringes without a doctor's prescription. But as Ethan Nadelmann, who heads the Soros-funded Lindesmith Center-Drug Policy Foundation and speaks for Soros on drug issues, puts it, Proposition 36 is "the single-biggest step forward in terms of reversing incarceration of nonviolent drug offenders in this country." </p>
<p>It's not clear where the campaign goes from here. Nadelmann has indicated that significant effort will go into the implementation of measures already passed, including attempts "to get the federal government, particularly drug czar Barry McCaffrey, to stop playing its obstructionist role." Earlier this year, Nadelmann and the drug law reformers got a federal court injunction in San Francisco to stop McCaffrey from going after doctors who prescribe marijuana under California's Proposition 215, the law permitting the medical use of marijuana that voters passed in 1996. </p>
<p>That injunction will hardly end the problem. California, like most states, was woefully short of drug clinics even before Proposition 36 passed, and while the measure appropriates an additional $120 million a year, it's not likely to be enough. Nadelmann warns that the criminal justice system "will try to grab all the money even as they try to make the whole thing look bad." Legislation to make the marijuana laws easier to use is also needed. </p>
<p>But at the same time, an almost unbroken series of ballot box and legislative victories over the existing drug enforcement system--by Nadelmann's count, 17 of 19 attempts have been successful--will almost certainly reinforce the campaign. There no doubt will be further polling to determine which other jurisdictions have voters who are sufficiently disillusioned with the war on drugs to support additional reforms. And there will be probes to determine which noninitiative states--such as New York, with its draconian Rockefeller drug laws--have legislatures that might be amenable to liberalizing drug possession laws through conventional legislative action. </p>
<p>The Soros-backed reformers insist that they're not pursuing drug legalization; Nadelmann says what they want is to reduce both drug abuse and the harm caused by existing drug policy. "We don't want to treat drugs like alcohol and cigarettes, but we don't think people should be incarcerated for possession," he says. "We prefer a public-health approach." The big obstacle, of course, is still federal law and Congress's fear of being perceived as soft on drug enforcement. But the message from the voters is perfectly clear. </p>
<p>
<font color="darkred" size="+2">I</font>n the face of the election mess, traditional politics and representative government could end up the biggest casualties of all. Shortly after the recounts began in Florida, Robert B. Reich did a piece on National Public Radio in which he declared a winner: And he is (drumroll) Alan Greenspan. The argument was perfectly plausible. The Federal Reserve likes gridlock in Washington because it reduces the likelihood of large tax cuts <i>and</i> of extraordinary spending increases. But the larger winner is likely to be any institution not tied to conventional electoral politics and politicians. In a number of states, especially where unions or gun control activists organized strong grass-roots campaigns, the conventional political process generated hopeful changes--among them, the election of Democrat Debbie Stabenow in Michigan over incumbent U.S. Senator Spencer Abraham. But the general effect, particularly of the presidential election, is still likely to be further disenchantment with conventional politics and a corresponding increase in the use of the initiative, both among voters and the deep pockets who fund it.</p>
<p>
Dean Tipps, the political director of California's Service Employees International Union, recently said that the initiative is an easy (and relatively cheap) way for the rich to buy themselves legislation. And while this year's backers of vouchers failed dismally, no one can even make it to the ballot in a large state--and maybe not in any state--without a hefty bankroll. In California nobody gets to play without at least $1 million. And as the success of the Soros-backed drug reform measures indicates, a lot of deep pockets were winners--as often, or maybe more often, on the left as on the right. </p>
<p>Those players are increasingly coming from Silicon Valley. California's Proposition 39, which made it easier to pass local school bonds, was funded largely by venture capitalists John Doerr and Reed Hastings; Ron Unz, another Silicon Valley businessperson, funded the successful initiatives curtailing bilingual education in California (1998) and Arizona (2000); and there's every expectation that such people will become even more involved in the future. Also important is the growing gap between the culture of the new technologies, with its mouse-click interactivity, and the slow, deliberate process of representative government and the traditional electoral system. For the citizens of the new economy, that gap appears to be getting increasingly less tolerable. </p>
<p>In an era when distrust of government is substantial and when polls show (as they recently did in California) that voters have far more confidence in citizen initiatives than in governors and elected legislatures, the behavior of candidates and the systemic confusion about this election's outcome can only reinforce voter disenchantment. That's almost certainly a gain not just for the initiative process but for the deep-pocket players--both individuals and interest groups--who have become the principal sponsors of ballot measures. ¤</p>
<!-- dhandler for print articles --> </div></div></div>Wed, 19 Dec 2001 19:08:07 +0000141454 at http://prospect.orgPeter SchragTake the Initiative, Please: Referendum Madness in Californiahttp://prospect.org/article/take-initiative-please-referendum-madness-california
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p><font class="nonprinting"><font size="+2">B</font>y now the best chicken-and-egg argument in California politics is: Which came first, the unresponsiveness, arrogance, and incompetence of California's elected politicians or the orgy of initiatives designed to bypass cretin government and set things straight? What's certain is that ever since the passage of Proposition 13, the mother of all latter-day tax revolts, in June 1978, the state has been locked into a vicious cycle in which each plebiscitary reform, by either mandating or prohibiting certain policies, has sharply reduced the discretion of elected officials. This, in turn, has made it still harder for local and state government to respond to new problems, thus bringing still more pressure for extraordinary ballot measures. In November, there will be another turn of the wheel-and a big one at that-with consequences that will reverberate far beyond the Sierras. </font></p>
<p><font class="nonprinting">Californians approved only two initiatives in the 1950s and three in the 1960s. In the 1970s, they approved 7; in the 1980s, the total reached 21; and so far 15 have already been approved in the 1990s, with a dozen more on the ballot for this November and the whole 1998 cycle still to come. Many of the recently enacted measures go to the very heart of the governmental process: tax and spending limits; legislative term limits; a minimum-spending formula requiring the legislature to spend at least 40 percent of the state's general fund for public schools; a variety of costly tough-on-crime mandatory-sentencing bills, including a sweeping three-strikes law (which was passed even after the legislature had already passed an identical law); Proposition 187 (so far blocked by the courts), which would deny schooling and other public services to illegal immigrants; a set of measures requiring the state to issue bonds for specified park, conservation, and public transit projects; a law regulating auto insurance; another regulating the use and labeling of toxic materials; and yet another raising the tobacco tax to fund antismoking campaigns and support research on smoking-related diseases; and many more. </font></p>
<p><font class="nonprinting">It was the leaders of the California tax revolt, Howard Jarvis and Paul Gann, and their consultants who pioneered the use of the new campaign technologies in getting their antitax measures on the ballot-targeted direct mail campaigns, market testing of initiative proposals, the use of paid signature gatherers, who now earn as much as $1.50 for each of the million or so signatures required to get a proposed constitutional amendment on the ballot, the linking of fundraising with signature gathering-but it didn't take environmentalists and other groups on the left long to catch up, and to invent a few wrinkles of their own. Anyone can play this game, though for reasons that should be obvious, the biggest players these days tend to be industry and professional groups-insurance, tobacco, trial lawyers. </font></p>
<p><font class="nonprinting">Given the political and financial effectiveness of these techniques, it shouldn't be surprising that there will be at least a dozen more initiatives on the state's November ballot: the already influential California Civil Rights Initiative (CCRI), which would bar race or gender preferences in public employment, contracting, and education; a labor-sponsored initiative raising the state's minimum wage; two competing campaign finance reform proposals, one from Common Cause, the other from Ralph Nader's Public Interest Research Group (PIRG), the latter containing a poison pill designed to destroy the former if PIRG's initiative passes; two lawyer-sponsored measures regulating (and blocking more severe restrictions on) attorneys' fees, one of them an open sesame to virtually unlimited securities fraud lawsuits; a sweeping measure to prohibit all local taxes and fees not specifically authorized by voters; another regulating HMOs; and still another legalizing the medical use of marijuana. </font></p>
<p><font class="nonprinting"><font size="+2">W</font>hat is new, or relatively new, is that, contrary to traditional patterns in this country, California's down-ballot measures are increasingly influencing-and being consciously used in attempts to influence-the races at the top of the ticket: They draw certain kinds of voters to the polls and they can be deployed to exploit the weaknesses of opponents. Cali fornia Governor Pete Wilson got a reputation as a political genius by successfully using the three-strikes initiative and Proposition 187 as political wedges against Democrat Kathleen Brown in his 1994 gubernatorial re-election campaign-the polls showed that Brown's opposition to 187 damaged her-just as he had used various tough-on-crime initiatives in prior elections. Clearly that's the tactic Republicans had in mind this year when they raised $450,000 to put CCRI on the 1996 ballot: Had things gone right, CCRI might not only have been the fatal wedge dividing the Democratic coalition-minorities and civil rights groups on one side, Reagan Democrats and other blue-collar voters on the other-but it might also have denied California's crucial 54 electoral votes to Bill Clinton, thereby determining the outcome of the presidential election itself. </font></p>
<p><font class="nonprinting">In the past six months, CCRI has lost a great deal of its political luster. Wilson, who tried last fall and winter to use immigration and affirmative action in his short-lived presidential campaign, went down in flames. Business groups conspicuously (though not surprisingly) stayed away from the initiative, and Bob Dole, who had jumped on the anti-affirmative action bandwagon a year ago, began to shy away from it. (The reason may have less to do with race than with the mounting focus of CCRI opponents on the gender issue, where Dole continues to be particularly vulnerable.) He, too, had been a backer of affirmative action, he told a television interviewer recently; now, he said, "I think there are some changes that should be made." To some on the right, that sounded suspiciously like "mend but don't end it." CCRI is still likely to pass-all the polls still have it leading by roughly 60 percent to 35 percent-but its potential as a wedge seems to have declined considerably, a classic case of something whose support is a mile wide and an inch deep. A few weeks ago the same California Republicans who ponied up the money to get CCRI on the ballot couldn't muster enough votes even from their own members to get a CCRI facsimile out of the GOP-controlled State Assembly. </font></p>
<hr size="1" /><center><font class="nonprinting"><a href="/subscribe/"><img alt="Subscribe to The American Prospect" border="0" src="/tapads/mini_subscribe.gif" /></a> </font></center><br /><hr size="1" /><p><font class="nonprinting">But this does not mean these initiatives have lost their political effectiveness. Here's where the left seems to have learned from the right. As CCRI's potential for drawing conservative voters to the polls appears to shrink, two liberal measures-the labor-sponsored initiative raising the minimum wage in California to $5.75 over the next two years, and a proposal, backed by public employee groups, to raise the marginal tax rates on high incomes from 9.5 percent to 11 percent-may do for Democrats some of what CCRI was supposed to do for Republicans: get marginal or indifferent Democratic voters to vote in what they would otherwise have considered to be an unimportant election, and force Republicans to choose between their business constituents and those angry white males. </font></p>
<p><font class="nonprinting">Other initiatives might also have potent effects. The Right to Vote on Taxes Act, sponsored by the Howard Jarvis Taxpayers Association, the group started by (and now named for) the curmudgeonly patron saint of the tax revolt, could bring out the still formidable residue of California's antitax movement, tens of thousands of cranky people chafing at the higgledy-piggledy system of developer fees, utility taxes, lighting assessments, and the various other property assessments and levies that cities and other local agencies have contrived to get around the tax limitations imposed by Proposition 13 and its successors. In effect the measure, which would be added to the California constitution, would require a popular vote, either by majority or supermajority depending on the nature of the tax, on any new local levy. It would, in addition, eliminate a number of existing exactions if they are not ratified by local majorities and it would absolutely prohibit using fees for any purposes other than what they are imposed for. Some local officials say, perhaps with more than a touch of hyperbole, that if the Right to Vote on Taxes Act is passed, it will make the effects of Proposition 13 "look like a picnic." </font></p>
<p><font class="nonprinting">It's now 85 years since Hiram Johnson and his fellow Progressives managed to write the initiative, referendum, and recall into the California constitution as a means of checking the power of "the interests"-specifically the Southern Pacific Railroad-and their lackeys in the legislature. But Johnson could hardly have imagined how that device, harnessed to modern campaign technologies, could be used by the very politicians and interests it was meant to check. A few years ago, the state's Planning and Conservation League, pushing an environmentalist bond initiative to fund more rail and other public transit, got $500,000 for its campaign from that same Southern Pacific, which expected to get some of the bond money so that it could upgrade its tracks with public money. In 1988 the insurance industry spent $88 million on five California auto insurance initiatives, more than George Bush spent on his entire presidential campaign. </font></p>
<p><font class="nonprinting">But the more important development is the way the initiative, which for a half century was regarded as an extraordinary expedient available in the rare cases of serious legislative failure or abuse, has not just been integrated into the regular governmental-political system, but has begun to replace it. Some students of California government think it's easier to amend the state constitution by initiative than to approve budgets or raise taxes, both of which require two-thirds votes in the legislature. Whether or not that's correct, the initiative has by general agreement become the principal driver of policy in California, sometimes for the good, but more often not. The cumulative effect of the plebiscitary reforms of the past two decades has been to strip cities, school districts, and especially counties of their ability to generate their own funds; to divide authority and responsibility uncertainly between state and local government and among scores of agencies; and to make it increasingly unclear who is ultimately accountable for the results of all these changes. That has put ever more emphasis on plebiscitary democracy-both as a device and as political ethic-to cut through the gridlock and confusion. And as each measure adds its mandates, takes money (in a process known as ballot-box budgeting) out of the budget and sets it aside for special purposes, or otherwise restricts legislative choices, it becomes still harder for voters to know whom to hold accountable and what rascals to throw out-which of course is one reason that voters enacted term limits, and thus made certain that every few years they all get thrown out. </font></p>
<p><font class="nonprinting">Which brings us back to November 1996. While it's still far too early to know how the down-ballot issues will influence the election, there's no doubt that they have become an increasing factor in the calculations and plans of California politicians. Where else in America do state-level candidates not only campaign on initiatives but, as Wilson and former Democratic Lieutenant Governor Leo McCarthy have done, sponsor them as platform vehicles on which to run? Clearly that was the plan when Wilson and his political ally, Sacramento businessman Ward Connerly, went all out earlier this year to get CCRI on the ballot, and when Wilson embraced Proposition 187, the immigration initiative, and Proposition 184, the three-strikes measure, in 1994. Just as clearly the minimum-wage measure has been-and will be-a crucial part of the Democrats' strategic calculations this year. The results of these down-ballot contests might not just reverberate around the nation, as they occasionally have in the past; if the race tightens, they could determine the next president of the United States. </font></p>
<p>
<!-- dhandler for print articles --></p>
</div></div></div>Wed, 19 Dec 2001 19:08:06 +0000141203 at http://prospect.orgPeter SchragDeclaring War on the Drug Warhttp://prospect.org/article/declaring-war-drug-war
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p><font class="nonprinting articlebody"></font></p>
<p><font color="darkred" size="+2">T</font>here are few issues on which Americans are as much out of sync with their elected leaders as they are on the so-called war on drugs: suppression of crops and traffickers abroad, interdiction at the border, criminal sanctions for users at home. If it's hard to find voters who believe U.S. drug policies are working, it's even harder to find politicians willing to recognize and confront that they're not. </p>
<p>
For the past four years, Bill Zimmerman, with funding from billionaire financier and philanthropist George Soros and a few other deep-pocket libertarians, has been making a living exploiting that gap. Since 1996 Zimmerman's <a href="http://www.drugreform.org">Campaign for New Drug Policies</a> has managed to pass initiatives in seven states, from Maine to California, legalizing the medical use of marijuana, and chances are good he'll add a few more this fall. So far, his record is seven wins and no losses.</p>
<p>
Now Zimmerman, a longtime California political consultant and liberal activist, is broadening the campaign, aiming to legalize the medical use of marijuana in two more states and running initiatives to reform asset forfeiture laws in Oregon, Utah, and Massachusetts (essentially by imposing a more stringent legal threshold before assets can be seized and by taking those seized assets from the cops and appropriating them either to drug treatment or to schools). </p>
<p>
But the "granddaddy" of the campaign, in the words of campaign spokesman Dave Fratello, is California Proposition 36: If it passes in November, it will not only represent a substantial step toward decriminalizing the possession of all illegal drugs, from methamphetamines and PCP to heroin and cocaine; it will very likely send a message from one end of the country to the other. </p>
<p>
The campaign's major backers, in addition to Soros, are John Sperling, president of the highly successful for-profit University of Phoenix, and Peter Lewis, head of Progressive Corporation, a large Cleveland-based insurance company. Together they've put some $15 million into drug reform and needle exchange programs, including roughly $1 million to qualify Proposition 36 for the California ballot. They are clearly capable of putting up a lot more, and probably will. </p>
<p>
Zimmerman wouldn't call the goal of the measure decriminalization. But there's not much doubt that that's where at least some of his backers would like to go. Ethan Nadelmann of the Soros-funded <a href="http://www.lindesmith.org">Lindesmith Center-Drug Policy Foundation</a>, who, in effect speaks for the Hungarian-born Soros on this issue, says Soros sees the incarceration of drug addicts as a "human rights issue" and regards the nation's drug laws as an area in which "the U.S. is not an open society." Certainly they hope that if voters approve Proposition 36, it will spur the campaign into other states. </p>
<p>
On its face it seems an easy sell. It requires that anyone convicted only of possession of drugs "for personal use" be sent to treatment instead of prison, and it appropriates $120 million annually to provide the treatment services. It also requires that all parolees testing positive for drugs or charged with drug possession be sent for treatment rather than be returned to prison. According to the state's nonpartisan <a href="http://www.lao.ca.gov/initiatives/2000/36_11_2000.html">Legislative Analyst's Office</a>, those provisions would result in the diversion of 24,000 drug offenders annually to treatment, thereby reducing state and county prison operating costs by somewhere between $240 million and $290 million and saving the taxpayers some $150 million annually. It would also save the state roughly $500 million in capital outlay for new prison facilities. If treatment succeeds on a wide scale, of course, it will presumably also reduce personal and family hardships by incalculable amounts. In early polls, it led by 66-20 percent. </p>
<p>
But it's hardly a sure thing. The measure also establishes a complicated process to monitor and enforce compliance--one judge called it a byzantine system, "a procedural horror"--that sharply restricts the discretion of judges, many of whom already divert low-level offenders to treatment. And because it also covers GHB and other so-called date-rape drugs, and because it prohibits the use of any of that $120 million for drug testing, it raises questions that are being vigorously exploited by opponents: Why mess with the state's existing drug courts, which, while they handle only a small fraction of drug cases, have succeeded in getting many clients through treatment? Why make it hard to test offenders as they go through treatment, since testing, backed by the threat of jail, is widely regarded as the essential element in getting addicts to take treatment seriously? Why reduce the ability of judges to send noncompliant drug offenders to prison? Why include date-rape drugs, substances intended not for personal use but for assault on innocent victims?</p>
<p>
Zimmerman replies that assaults are, of course, subject to criminal sanctions; the measure does not cover drugs that are to be used on others. In any case, he points out, the date-rape drug of choice is alcohol, which is legal. As for the testing issue, he says there's plenty of other money for testing--certainly the initiative doesn't forbid it, as some of the opponents charge. But it's also true that his backers see testing--such as spot testing of workers even in nonsensitive occupations and drug screening of high school and college athletes, and occasionally of all high school students--as another corrosive invasion of personal liberty. Zimmerman acknowledged that they wanted to include a flat prohibition against testing until "our initial polling showed that drug testing is popular." </p>
<p>
Proposition 36 has the endorsement of the California Nurses Association, the state's alcohol and drug abuse counselors, some local medical societies, and the state AFL-CIO. It also is supported by a smattering of California politicians, most (though not all) of them Democrats, including Senate President Pro Tem John Burton. But <a href="http://www.noonprop36.com">the opponents</a>, led by the California Correctional Peace Officers Association (CCPOA), the state's politically muscular prison guards union, and including virtually every other major law enforcement organization in the state--police chiefs, sheriffs, district attorneys, drug court judges--will be formidable. </p>
<p>
Because the CCPOA not only has a reputation as a major player in California politics but has a membership with an obvious financial interest in keeping the prisons full, it's tried to lower its profile: For a few weeks this summer, you couldn't find the organization on any of the opposition lists. "We're seriously involved in the campaign," said CCPOA Political Director Jeffrey Thompson, "but we're not going to give them an easy target." But in the cat-and-mouse games of initiative politics, that could easily change. The screws, who put more than $1 million into Republican Governor Pete Wilson's last campaign and ponied up more than $2 million for Democratic Governor Gray Davis's gubernatorial campaign two years ago, could easily write another big check before it's over.</p>
<p>
One thing that gives this contest national significance is that both sides have firmly declared themselves to favor treatment over incarceration whenever possible. Both say that the nation's drug policies aren't working. Both have liberals and conservatives among their supporters. (The nos were delighted when they enrolled actor Martin Sheen, a fully certified lib, as their honorary chair. The supporters include U.S. Senate candidate and Republican Congressman Tom Campbell as well the conservative <i>Orange County Register</i>. <a href="http://www.lindesmith.org/news/DailyNews/08_01_00Levine.html">Drug policy makes strange bedfellows.</a>) Both argue that there are too few treatment facilities and that waiting lists are too long. All of this is to say that on the surface the California argument seems to be largely over the details, which may be another reason the prison guards have taken such a low profile and why the managers of the no campaign have encouraged the state's drug court judges, who already supervise diversion and treatment of a relatively small number of nonviolent addicts, to be the leading spokespeople against it. </p>
<p>
The drug court judges assert that they already do precisely what Proposition 36 aims to do, but that they have the clout and flexibility, along with the use of drug testing, to quickly impose consequences on those who don't cooperate. Proposition 36 would take away their discretion and clout by requiring treatment in most cases and by making it procedurally more difficult to throw convicted addicts who do not take their treatment seriously into jail for a day or two (and thus scare them straight). "Nobody says that the existing [punishment-based] system works," says Alameda County Superior Court Judge Peggy Hora. "We're showing that favoring treatment over incarceration is not tantamount to political suicide. But this initiative does not promote recovery and treatment. If [its backers] want flat-out legalization, let them say so."</p>
<p>
Zimmerman responds that the drug courts are a fig leaf for a failed policy that's crowding the prisons with nonviolent drug offenders. The United States, with its two million prisoners, has far and away the largest number of <a href="http://www.sentencingproject.org">incarcerated people</a> of any country on earth--"nearly one of every four on the planet, and that's almost entirely the consequence of the drug war. And California is the worst offender of them all." But behind the statistics hide all manner of other disputes. No one is certain, for example, how many drug-dealing arrests are plea-bargained down to simple possession charges, or how many parolees, nominally re-jailed for failing a drug test, were in fact called in for a drug test because they were thought to be committing more serious offenses. Almost no one is in prison merely for possession, says Santa Clara County Superior Court Judge Stephen Manley. "It just doesn't happen." </p>
<p>
It's at this point that the statistical debate begins to edge into the question of legalization. How many minor offenses would be prevented if possession of at least some drugs were decriminalized? Proposition 36, Zimmerman says, is meant "to express dissatisfaction with the war on drugs," and to stake out a middle ground that will "make this something that politicians can talk about." But Proposition 36 is also touched by the libertarian predilections of its backers. In the end, it does squint toward legalization. </p>
<p>
Nadelmann says that Soros, with his experience with democratization in Eastern Europe, "was offended that there is no open dialogue" on the drug issue in this country. He and his colleagues had hoped their victories with the marijuana initiatives would get more respectful attention from Congress, though in fact they got almost none. But "if Proposition 36 wins in California, we'll take it to Congress." Their political problem stems from the fact that the very initiative process they're using has forced them to offer an inflexible proposal that's vulnerable to criticism from people who can legitimately claim to have the same humane objectives they do. "This is a complicated problem," Manley says. "Proposition 36 assumes there's a simple solution." But the very fact that it's being debated on these terms indicates the extent to which both sides believe that the public is ready for reform. Even if it loses, it could well open the door to further reform--it may thus win even by losing. And that, ultimately, may be what Zimmerman, Soros, and company are counting on. ¤</p>
<p>Peter Schrag is the author of <i>Paradise Lost: California's Experience, America's Future</i> and former editorial page editor of <i>The Sacramento Bee</i>.<br /><br /></p>
<p>
Further Resources</p>
<p>
<a href="http://www.aclu.org/issues/drugpolicy/hmdrugpolicy.html">ACLU on Drug Policy</a></p>
<p>
<a href="http://www.lindesmith.org">The Lindesmith Center-Drug Policy Foundation</a></p>
<p>
<a href="http://www.whitehousedrugpolicy.gov/">Office of National Drug Control Policy</a></p>
<p><br /></p>
<hr size="1" /><center>
<p align="center"><font face="verdana,geneva,arial" size="-2"></font>
class="nonprinting"&gt;</p>
<hr size="1" /></center></div></div></div>Wed, 19 Dec 2001 19:07:25 +0000141778 at http://prospect.orgPeter SchragA Quagmire for Our Timehttp://prospect.org/article/quagmire-our-time
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p><span class="dropcap">A</span>t least since 1996, when voters in california and Arizona approved ballot<br />
initiatives legalizing the medical use of marijuana, Americans have been trying<br />
to send the same message to Washington, D.C.: The nation's escalating,<br />
$20-billion drug war is a disastrous and costly failure that is stuffing the<br />
prisons, ruining thousands of lives both here and abroad, and producing few<br />
perceptible gains--except maybe in the careers of politicians.</p>
<p>
With every passing year, the message becomes louder. In elections that<br />
followed passage of the California and Arizona initiatives, similar measures have<br />
been passed in Oregon, Washington State, Maine, Alaska, Colorado, and Nevada,<br />
many of them by overwhelming majorities. Last year a medical-marijuana bill was<br />
also approved by the Hawaii legislature and signed by the governor. In the summer<br />
of 1998, Republican Congressman Bob Barr of Georgia, a leading drug-war hawk,<br />
wrote a gag rule into the District of Columbia's appropriation bill to prohibit a<br />
vote on a medical-marijuana initiative from even being counted. Ten months after<br />
the election, when a federal judge finally overthrew the ban, the count showed<br />
that it, too, had passed. </p>
<p>
In every one of those jurisdictions, voters are, in effect, repudiating the<br />
drug war and ignoring federal lawmakers: One of every five Americans now lives in<br />
a place where state law allows people with a doctor's recommendation to smoke pot<br />
legally in order to mitigate symptoms not easily controlled by federally licensed<br />
drugs--particularly to relieve chronic pain or nausea caused by chemotherapy for<br />
cancer, to reduce ocular pressure in glaucoma, to fight debilitating weight loss<br />
caused by AIDS, or to reduce the muscle spasms of multiple sclerosis.</p>
<p>
That's not all. Drug-law reform--what Barr calls "this subversive criminal<br />
movement"--has gone well beyond medical marijuana. Last November a campaign led<br />
by a veteran California political consultant named Bill Zimmerman and funded by a<br />
trio of deep pockets--billionaire financier George Soros, Cleveland insurance<br />
executive Peter Lewis, and John Sperling, president of the for-profit University<br />
of Phoenix--secured passage of California's landmark Proposition 36, which<br />
requires that anyone convicted of simple possession of an illicit drug be sent to<br />
treatment, not to prison. The measure, which went into effect July 1,<br />
appropriates $120 million annually for additional treatment services.<br />
California's nonpartisan legislative analyst estimates that it will keep some<br />
30,000 individuals a year out of prison and save the state $500 million in<br />
prison-construction costs and between $200 million and $250 million annually in<br />
prison-operating costs. </p>
<p>
Looking for states in which to run Proposition 36-type ballot measures in<br />
November 2002, Zimmerman is now conducting polls and running focus groups in<br />
Florida, Ohio, Michigan, and Missouri. The poll results in Florida, he says, are<br />
as favorable as they were in California. So far, of the 15 drug reform<br />
initiatives Zimmerman has run, 14 have been approved.</p>
<p>
The list goes on. The New Mexico legislature, with the strong backing of<br />
Republican Governor Gary Johnson, approved bills earlier this year permitting<br />
pharmacies to sell syringes over the counter to drug users in order to reduce the<br />
risk of HIV transmission; expanding funding for drug treatment; restoring voting<br />
rights to convicted felons; and allowing the early release and treatment of women<br />
convicted of nonviolent drug-related offenses. And New York Governor George<br />
Pataki, another Republican, has been calling for reform of the state's 1973<br />
Rockefeller drug laws, under whose "mandatory minimum" sentences even some<br />
first-time offenders--individuals charged merely with possession--have been given<br />
prison terms of as much as 15 years to life. For Ethan Nadelmann, who heads the<br />
Soros-funded Lindesmith Center-Drug Policy Foundation, all these reforms aim for<br />
"harm reduction"--to control the medical and social effects of drug use as well<br />
as the corollary damage that results from enforcement of punitive drug-control<br />
laws. Their focus is on reducing deaths from drug overdoses, bringing down the<br />
rate of HIV infection by encouraging needle exchanges, getting nonviolent drug<br />
offenders out of prison and into treatment, and "wasting less taxpayer money on<br />
ineffective criminal policies." This is the sagebrush rebellion of the left.</p>
<p></p><p>
<span class="subhead">Dopey Drug Warriors</span></p>
<p>
But the feds don't get it, or pretend not to get it. There's<br />
too much money and too many jobs in the drug war, and being "tough" on drugs is<br />
politically safer than the uncertain ground of moderation. And so federal<br />
resistance to reform remains as adamant as ever. In 1988, following an extended<br />
review of the research, Francis L. Young, an administrative law judge of the Drug<br />
Enforcement Administration, issued a voluminous ruling that marijuana "has been<br />
accepted as capable of relieving the distress of great numbers of very ill<br />
people, and doing so with safety under medical supervision. It would therefore be<br />
unreasonable, arbitrary and capricious for DEA to continue to stand between those<br />
sufferers and the benefits of this substance in light of the evidence in this<br />
record." But despite Young's decision, as well as a string of other appeals and<br />
scattered attempts in Congress to move marijuana into the DEA's Schedule II<br />
category of drugs--a class that doctors may prescribe and that includes morphine<br />
and other narcotics--the DEA has refused to reclassify marijuana. It remains a<br />
Schedule I drug, a classification that means it is officially a substance with a<br />
high potential for abuse and no proven medicinal use, and thus is treated as<br />
contraband except for research under extremely restricted circumstances. </p>
<p>
Last winter, in the months immediately after George W. Bush's election, some<br />
drug-law reformers thought the new president might become to drugs what Richard<br />
Nixon was to China. As a candidate, Bush once declared that marijuana ought to be<br />
a state issue; as recently as January he acknowledged that "a lot of people are<br />
coming to the realization that maybe long minimum sentences for first-time users<br />
may not be the best way to occupy jail space and/or heal people from their<br />
disease." At the same time, some senior members of the administration were<br />
indicating that there would be a shift in the drug war from interdiction and crop<br />
destruction to prevention and treatment. (Bill Clinton said the same thing but<br />
never acted on it.) So far, however, it's been mostly lip service. In Attorney<br />
General John Ashcroft, Bush picked a conservative who says he wants to "escalate<br />
the war on drugs." And in early May, when Bush chose two devoted drug warriors<br />
for the administration's key drug jobs, the direction seemed even clearer. To<br />
head the DEA: Representative Asa Hutchinson of Arkansas, a moral crusader who<br />
thinks that it would be a great idea to use federal funds to campaign against<br />
state marijuana initiatives and who opposes any research on medical use of<br />
marijuana because "it would send the wrong message to children." And for drug<br />
czar: John P. Walters--once chief deputy to William Bennett, drug boss under Bush<br />
père; a hard-liner on criminal penalties for drug users; a strong opponent<br />
of any medical exceptions for marijuana use; and a hawk who favors using the<br />
military in the drug war. A few days after those announcements, Bush approved a<br />
grant of $43 million to the Taliban in Afghanistan--the most cruel, repressive,<br />
and anti-American regime on earth--for its success in eradicating the opium poppy<br />
crop. This is how America supports freedom.</p>
<p>
"The most effective way to reduce the supply of drugs in America is to reduce<br />
the demand for drugs in America," Bush said in a Rose Garden ceremony introducing<br />
his new drug warriors. "Therefore, this administration will focus unprecedented<br />
attention on the demand side of this problem." Did Bush get the irony? In the<br />
president's proposed budget, of every $20 for antidrug activities only about one<br />
dollar goes to treatment programs. Two-thirds of the allocation goes to law<br />
enforcement, including a hefty 21 percent increase for federal prisons. It's hard<br />
to think of another issue on which Washington is more out of sync with voters--or<br />
with the states--than it is on the drug war.</p>
<p>
<span class="dropcap">D</span>rug-war enthusiasts like Bob Barr and activists like Sue<br />
Rusche--executive director of the Atlanta-based National Families in Action,<br />
probably the largest private antidrug organization in the country--argue that<br />
it's the billionaire Soros who has seduced the country into embracing all those<br />
drug-reform initiatives. Rusche may be right that the current reform campaign<br />
wouldn't be possible without the money from Soros and a few other deep pockets.<br />
She's probably also correct in regarding medical marijuana as what one reformer<br />
called "the big enchilada of reform"--the beginning of what she sees as a<br />
slippery slope toward the decriminalization of other drugs. But compared with the<br />
more than $185 million the feds spend annually on antidrug advertising and<br />
education campaigns and the billions that go into the rest of the drug war, the<br />
Soros money is peanuts. Even Barry McCaffrey, who was Bill Clinton's drug czar,<br />
acknowledged as much. "The drug legalization people," he told Congress a couple<br />
of years ago, "don't have a fraction of the power that we have now brought to<br />
bear on this issue."</p>
<p>
Soros and friends are fishing in well-stocked waters: Most Americans seem to<br />
understand that despite the regular announcements of big drug busts and the<br />
breakup of yet another family of South American drug lords, illegal drugs are as<br />
plentiful as ever, and often cheaper than they have ever been. In a poll<br />
conducted in March by the Pew Research Center for the People and the Press, 74<br />
percent of respondents declared that the nation's costly drug war--up from $4.7<br />
billion in 1988 to $20 billion now--is a failure. While most Americans are not<br />
ready for legalization, the majority say that drug abuse should be treated as a<br />
disease, not a crime. And a whopping 73 percent also say that doctors should be<br />
allowed to prescribe marijuana to their patients.</p>
<p>
Those numbers aren't surprising. By now, it's become folk wisdom that the huge<br />
run-up in the nation's enormous prison population has been driven in considerable<br />
part by the drug laws. Of the 1.2 million drug arrests in this country in 1999,<br />
80 percent were for possession, and more than half of those for possession of<br />
marijuana. And when 35 percent of American adults 26 years or older have tried<br />
marijuana but only 5.4 percent still smoke it, they surely have begun to suspect<br />
that pot isn't the highway to addiction that prohibitionists depict. By now<br />
they've also heard enough stories about first-time drug offenders who've been<br />
sent away to murderer- and rapist-length prison terms to know that something is<br />
seriously wrong. More than 300,000 Americans are in prison on drug charges,<br />
roughly 12 times as many as there were in 1980, at an annual cost of more than $6<br />
billion in prison expenses alone. Currently 31 percent of all admissions to state<br />
prisons are drug offenders, of whom a vastly disproportionate number are blacks.<br />
It's hardly surprising that there's now a Families Against Mandatory Minimums<br />
Foundation, which claims 20,000 members in 25 chapters across the country.</p>
<p>
<span class="subhead">The Government versus the People</span></p>
<p>
Zimmerman's drug-law-reform campaign began almost<br />
accidentally after a nurse in Southern California named Anna Boyce, a member of a<br />
neighborhood anticrime patrol, reported a burglary one night. When the deputies<br />
arrived to investigate, they found a small amount of pot, which the owner of the<br />
home, a lawyer, used to control the pain from his rheumatoid arthritis. The<br />
burglars were never caught, but the lawyer was busted and charged with<br />
possession. As Zimmerman tells the story, "Boyce was so outraged that she<br />
launched a campaign to allow patients to use marijuana as medicine." Twice the<br />
California legislature passed the resulting bill; twice Governor Pete Wilson<br />
vetoed it. It was at that point that Boyce turned to Nadelmann's organization,<br />
which brought in Zimmerman. </p>
<p>
Zimmerman and his backers freely acknowledge that their ultimate objective<br />
is not to rewrite state laws but to change federal ones. The initiative route,<br />
though often clumsy and inflexible, they believe, is simply the fastest way--and<br />
the cheapest--to send the message. </p>
<p>
But law enforcement still speaks a lot louder in Washington than does<br />
treatment or drug-law reform. Shortly after California passed the<br />
medical-marijuana initiative in 1996, McCaffrey, U.S. Attorney General Janet<br />
Reno, and other senior members of the Clinton administration warned that any<br />
physician caught discussing marijuana with a patient would be subject to<br />
revocation of his or her authority to prescribe drugs under the terms of the<br />
federal Controlled Substances Act--a sanction that, if carried out, would ruin<br />
the doctor's practice. Although the administration later softened the threat to<br />
target only physicians "recommending" marijuana to patients, two federal judges,<br />
responding to a suit filed by doctors and patients, ultimately enjoined the<br />
government from issuing such threats--which, in effect, would have amounted to a<br />
gag rule--or from launching any investigations on that ground. "If such<br />
recommendations could not be communicated," said U.S. District Judge William<br />
Alsup in a decision handed down last September, "the physician-patient<br />
relationship would be seriously impaired." Recommending pot is not the same as<br />
providing it, he ruled, and patients have a right to know their doctors'<br />
recommendations: Even if they could not get drugs legally, they would know enough<br />
to try to change the law--which, of course, is what they've been trying to<br />
do.</p>
<p></p><p> But it's on the matter of supply that the government has concentrated its<br />
response. Ever since the first medical-marijuana initiatives passed, the<br />
government has sought to shut down groups like the Oakland Cannabis Buyers<br />
Cooperative (OCBC), which distributed pot to those it regarded as legitimate<br />
users. A liberal three-judge panel of the Ninth U.S. Circuit Court of Appeals<br />
accepted the OCBC argument that since patients with no other remedies but pot<br />
could offer a medical-necessity defense in a criminal case, so could the supplier<br />
use it against the government's attempt to close it in a civil action. But in an<br />
8-0 decision handed down in May, the Supreme Court ruled that there was no room<br />
in federal law for any medical-necessity exception for the cannabis clubs.<br />
(Significantly, three of the eight justices pointedly declared, in a concurring<br />
opinion by Justice John Paul Stevens, that the medical-necessity defense "might<br />
be available to a seriously ill patient for whom there is no alternative means of<br />
avoiding starvation or extraordinary suffering.")</p>
<p>
The decision, however, did not overturn the medical-marijuana laws; what it did<br />
instead was create more uncertainty for both medical-pot users and the<br />
government. The feds had brought the suit in the first place knowing that if they<br />
went after either small-time growers or individual users in discrete criminal<br />
prosecutions, a costly and cumbersome process in any case, they risked wholesale<br />
acquittals--essentially nullification of the law--by juries composed of many of<br />
the very same people whose sympathy toward cancer patients and glaucoma victims<br />
led them to vote for medical marijuana in the first place. Better, then, to try<br />
civil injunctions as in the OCBC case--without the burden of fines or<br />
imprisonment, or juries--to put the distributors out of business.</p>
<p>
But now that the court has made its decision, who is going to enforce it--and<br />
how? If the government succeeded in shutting down centralized distributors like<br />
OCBC, it would simply drive the supply system toward the black market, with its<br />
additional risks, or into other channels. The Oregon initiative, for example,<br />
specifically allows any patient registered as a medical-marijuana user with state<br />
authorities--a certificate is available with a physician's recommendation--to<br />
grow up to seven marijuana plants, or to have a designated caregiver grow them on<br />
the patient's behalf. Kelly Paige, who runs the Oregon Medical Marijuana<br />
Registry, says she's not sure whether two or more people could designate the same<br />
caregiver: Could someone grow 21 plants for three patients or 700 for 100<br />
patients? Paige says that there's a "gray area in the law" on that point. But<br />
what is clear is that the state's registry, now with 2,500 names, is growing at a<br />
rate of 50 a week. Will the government seek to shut that down, thereby not only<br />
creating more law enforcement problems but setting up a major state-federal<br />
confrontation?</p>
<p>
The Nevada initiative, passed by a 65 percent majority last November, has even<br />
more interesting implications. It requires the legislature to approve<br />
"appropriate methods for supply of the plant to patients authorized to use it"<br />
and has consequently prompted a bill, so far stalled in the legislature,<br />
authorizing the state to grow and distribute the pot. Following the 1999<br />
initiative approved in Maine, a similar bill was being considered there. If Uncle<br />
Sam were to take on the states in such cases, federal law would clearly prevail.<br />
But does an administration professing to respect states' rights really want to<br />
embark on a campaign in which it seeks to thwart what would quickly be called the<br />
will of the people?</p>
<p>
<span class="subhead">What George Soros and William F. Buckley Have in Common</span></p>
<p>
The debate about drugs and the drug war spawns all sorts of wacky theories.<br />
One is that marijuana is a "gateway drug" that soon leads users to crack and<br />
heroin. Another, suggested by Calvina Fay, executive director of the Drug Free<br />
America Foundation, is that Soros and his fellow money bags fund the reform<br />
movement because they "are business people" who sooner or later hope to be making<br />
money in the trade. It's true that the reformers are squinting toward something<br />
that ultimately looks a lot more like decriminalization, if not legalization, and<br />
that the compassionate-marijuana-use campaign is itself, in effect, a gateway to<br />
a broader libertarian agenda to decriminalize all drugs. Joseph Califano--Jimmy<br />
Carter's secretary of health, education, and welfare, who now heads Columbia<br />
University's National Center on Addiction and Substance Abuse--calls Soros "the<br />
Daddy Warbucks of drug legalization."</p>
<p>
But on that issue, Soros has estimable company--from William F. Buckley to<br />
former Secretary of State George P. Shultz to economist Milton Friedman.<br />
Nadelmann says that Soros, an émigré from eastern Europe, was<br />
offended that in the United States, a model for democracy around the world,<br />
"there is no open dialogue on this issue," and that given Congress's attempts to<br />
stifle research and suppress debate--not to mention the huge number of people<br />
incarcerated for drug addiction--"this is not an open society."</p>
<p>
Soros, with his global interests, sees the issue in international terms: in<br />
possible adaptations of the treatment-centered drug policies of western Europe;<br />
in resisting what Nadelmann describes as the danger of a Cambodia-style<br />
escalation--into Ecuador, back into Peru, perhaps into Brazil--of Washington's<br />
$1.3-billion Plan Colombia, the bloody, U.S.-funded South American guerrilla war<br />
cum coca-eradication program; and in the reformers' wider campaign of harm<br />
reduction and drug regulation (as with tobacco and alcohol) instead of<br />
prohibition. If Colombian cocaine production were stopped tomorrow, Nadelmann<br />
said, "the U.S drug problem would change only peripherally."</p>
<p>
That view has support in Latin America as well--from Mexican President Vicente<br />
Fox, who said he'd legalize drugs if he could, and his foreign minister, Jorge<br />
Castañeda, who says it's time "for rethinking ... this absurd war no one really<br />
wants to wage"; and from a growing list of prominent people--Americans and<br />
others--who signed a Soros-funded "open letter" (ostensibly directed to UN<br />
Secretary-General Kofi Annan) declaring that "the global war on drugs is now<br />
causing more harm than drug abuse itself." Among the signers: former Costa Rican<br />
President Oscar Arias, former Nicaraguan President Violeta Barrios de Chamorra,<br />
former Colombian President Belisario Betancur, Harvard paleontologist Stephen Jay<br />
Gould, former Kansas City Police Chief Joseph McNamara, Stanford University<br />
President Emeritus Donald Kennedy, and scores of others--academics, physicians,<br />
cabinet ministers, members of parliament, prosecutors, and judges. </p>
<p>
More immediately, in April the Canadian government liberalized rules for the<br />
medical use of marijuana and began to move toward an Oregon-style system in which<br />
physician-certified users or designated caregivers may grow limited amounts of<br />
pot. At almost the same moment, U.S.-subsidized Peruvian Air Force fighters,<br />
pursuing what a Central Intelligence Agency tracking plane had tentatively<br />
identified as a bunch of drug runners flying over the Brazilian-Peruvian border,<br />
shot down a plane carrying American Baptist missionaries--killing a mother and<br />
her infant--and then strafed the survivors clinging to the plane's wreckage. No<br />
one can count how many Peruvians, Bolivians, and Colombians have been killed or<br />
driven off their land in the same war.</p>
<p></p><p><span class="subhead">Reforming Reefer Madness</span></p>
<p>
At this point, even the scientific debate in this country about the medical<br />
use of marijuana is so hampered by politics and fraught with so much extraneous<br />
cultural baggage that it can hardly be conducted at all. Two years ago, the<br />
National Academy of Sciences' Institute of Medicine issued Marijuana and<br />
Medicine: Assessing the Science Base, an extensive, two-year,<br />
administration-commissioned review of the research that debunks the contention<br />
that marijuana is a "gateway drug" for the young (alcohol and tobacco, it points<br />
out, are far more common gateways). "Smoked marijuana should generally not be<br />
recommended for long-term medical use," says the report. "Nonetheless, for<br />
certain patients, such as the terminally ill or those with debilitating symptoms,<br />
the long-term risks are not of great concern." But even the Institute of Medicine<br />
report, which has been cited by drug prohibitionists to prove that smoked<br />
marijuana is addictive and medically useless, is bogged down in controversy.</p>
<p>
The prohibitionists argue that other drugs are available to control nausea,<br />
pain, and the other symptoms for which patients smoke pot. The most important, a<br />
synthetic form of THC, one of marijuana's psychoactive compounds, comes in a pill<br />
under the trade name Marinol. But many patients have found the highs and other<br />
side effects of THC pills hard to control; others, suffering from nausea, can't<br />
even hold the pills down. Smoking marijuana, they say, generally acts faster and<br />
makes it possible for them to self-regulate the amount of the drug they absorb<br />
into their systems. The critics of reform are right that the medical-marijuana<br />
flag is being flown by a lot of users--and dealers--who have no clearly<br />
defensible medical reason for possessing pot or who stretch the definition of<br />
medicinal usage to the breaking point. (In Petaluma, California, for instance,<br />
two men who were recently arrested and tried for running a pot farm on which they<br />
were growing nearly 900 plants in a barn and half a dozen greenhouses and selling<br />
the stuff at a 100 percent markup. They said they were doing it for<br />
"compassionate use" under the state's medical-marijuana act.) At the same time,<br />
however, a lot of potentially legitimate users in states such as Hawaii, which<br />
has legalized medical use, are afraid to enroll in state registries, which are<br />
open to law enforcement officers, for fear of prosecution. But that's all the<br />
more reason to have a regulated system that allows all concerned--patients,doctors, and cops--to determine what is and isn't legitimate medical use.</p>
<p>
Every one of the new reforms is now being tested--in the field, in the<br />
courts, and in the public arena. Increasing amounts of the movement's resources<br />
and energy are now being spent on these tests, which offer the most real hope for<br />
sanity in drug policy and are likely to determine the future of the reform drive.<br />
Probably the biggest test has just begun in California with the implementation of<br />
Proposition 36, the drug-treatment initiative, which Zimmerman and Nadelmann hope<br />
will be a model for other states. During the campaign last year, opponents--among<br />
them cops, district attorneys, some judges, and, most prominently, the state's<br />
powerful prison guards' union--charged that the new law's enforcement machinery<br />
would be too cumbersome to make addicts cooperate and keep them in treatment<br />
until they're clean. Under the old law, drug-court judges could send addicts to<br />
treatment as a condition of probation; if they failed to cooperate, they could be<br />
jailed without further ado. Under the new initiative, resisters and backsliders<br />
are entitled to a hearing before they can be sent to prison. The opponents also<br />
contended that the state simply doesn't have the treatment facilities or the<br />
trained personnel to handle the expected 30,000-plus cases--heroin addicts, coke<br />
snorters, meth users, and others convicted of drug possession--that are expected<br />
to be driven into the system each year. The existing system, they charged<br />
correctly, doesn't have nearly enough capacity or trained therapists to handle<br />
even those who voluntarily seek treatment. In San Francisco, the city's health<br />
department has more than 1,000 people on its waiting list at the end of each<br />
month.</p>
<p>
Zimmerman says that the $120 million that the initiative appropriates for each<br />
of the next five years should be sufficient to provide the necessary<br />
services--because while some people require extended residential treatment, most<br />
do not. But for much of the past spring, there was a great deal of arm wrestling<br />
between probation departments and health officials about who got how much of the<br />
money. In essence, the same law-enforcement groups that said the state was short<br />
of treatment facilities tried to snatch a large share of the treatment money for<br />
themselves.</p>
<p>
The outcome of the new reform laws is hardly assured. The public has obviously<br />
moved on the issue and so have national politicians like Republican Senator John<br />
McCain of Arizona and Democratic Senators Barbara Boxer of California and Patrick<br />
Leahy of Vermont. (All three said that their views were affected by Traffic, the<br />
grainy, documentary-style film about the futility of the drug war at the Mexican<br />
border--which, if true, shows how primitive congressional understanding of the<br />
drug issue really is.) And so, it appears, have some Bush cabinet officials,<br />
including Health and Human Services Secretary Tommy Thompson, who as governor of<br />
Wisconsin supported some needle exchange programs and has since succeeded in<br />
getting a supporter of such programs named as the administration's AIDS "czar."<br />
Even McCaffrey, Clinton's drug general, left office early this year sounding more<br />
moderate than he had when he began, talking now about "holistic" policies, saying<br />
the country should stop using the term "drug war," and distancing himself from<br />
the "drug gulag."</p>
<p>
Nadelmann says drug-law liberalization is roughly where gay rights was a<br />
decade ago: "It's a matter of cultural transformation." That hardly means that<br />
enlightenment is just 10 years off. Our fundamental ambivalence as a<br />
nation--between our concern for AIDS, cancer, and glaucoma patients with no real<br />
alternatives but smoked marijuana and our powerful sense that heroin and crack<br />
are dangerous and destructive substances; between citizens who understand that<br />
our existing policies of interdiction and repression are failing and the real<br />
fears of those same citizens as parents that their children may be in jeopardy;<br />
between our libertarianism and our puritanism--is likely to make us hesitate. The<br />
kids who experiment with deceptively dangerous meth-type drugs like ecstasy and<br />
end up in the emergency room seem to be younger than they've ever been before,<br />
and they're scaring a lot of people. "The public," said Rusche, "has been badly<br />
deceived" by the drug-reform campaign. "There'll be a backlash." If we start<br />
reading stories about addicts released under reform-law diversion programs<br />
committing ugly crimes, or more items about teenagers overdosing on ecstasy or<br />
coke at rave clubs, Rusche could turn out to be a prophet.</p>
<p>
At the same time, however, let's not underestimate the possible backlash<br />
against the stupidity and rigidity of the drug warriors in Washington--or the<br />
power of existing federal policy, the excesses of the drug war, and unbending<br />
state criminal statutes such as the Rockefeller drug laws to energize the reform<br />
campaign. A government of drug-war militants like Bob Barr, Asa Hutchinson, and<br />
John Walters may be the best way to move the rest of the country toward<br />
moderation. Every time thoughtful voters hear that old reefer-madness rhetoric,<br />
the credibility of the larger antidrug message is undermined--as is the<br />
legitimacy of a national drug policy that, despite administration talk about<br />
treatment, is still rooted in the criminal justice system, not in the medical<br />
system. The votes and the polls of the past five years indicate that Americans<br />
seem quite capable of distinguishing between outright legalization, which they<br />
fear, and the excesses of the drug war, which they reject. It's eerie how much<br />
the quagmire of the drug war, at home and abroad, is beginning to resemble that<br />
other quagmire of a generation ago. Bust a few hundred more solid citizens who<br />
are trying to control their chemotherapy-caused nausea with pot, shoot down a few<br />
more Baptist missionaries in Peru, move a step closer toward actual American<br />
military involvement in Colombia, and who knows how much further reform could go?</p>
</div></div></div>Wed, 19 Dec 2001 19:07:25 +0000142036 at http://prospect.orgPeter SchragBlackouthttp://prospect.org/article/blackout
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p><font color="darkred"><big>I</big></font>f California's misbegotten electricity deregulation scheme is ever reduced to canvas or film, the artist would have to be some cross between Hieronymus Bosch and Federico Fellini. At one level, it's a surreal story of grossly compounded economic errors; at another, a gruesome morality tale--not only about corporate greed and political stupidity, but about the illusions of a new economy floating, detached, in some space of its own, unburdened by the problems of old-economy infrastructure and government.</p>
<p>
The resulting disaster has caused John Bryson--the CEO of Edison International, in whose offices much of this deal cooked up, to declare it a mistake and call for re-regulation. It is prompting serious talk about having the state seize the whole California power system and construct its own generating facilities. And it has succeeded in making Gray Davis, California's ever cautious New Democratic governor, sound like William Jennings Bryan. "California's deregulation scheme is a colossal and dangerous failure," he said in early January in his state-of-the-state speech. "Never again can we allow out-of-state profiteers to hold California hostage. Never again will we allow out-of-state generators to threaten to turn off our lights at the flip of a switch." Just a month earlier, the same Gray Davis had lit the lights on the state Christmas tree and, in a symbolic show of energy conservation, immediately flipped the switch turning them off.</p>
<p>
It's hard to find anyone who denies the part about the colossal failure. Wholesale electricity prices in recent months have averaged 11 times their levels of the previous year. Two of the state's three large investor-owned utilities--the prophetically acronymic IOUs--claim that they've had to absorb those prices, since under the terms of the deregulation law they are not allowed to pass them on to their customers. As a result, they've seen their credit and debt ratings downgraded to junk level on Wall Street and have warned of imminent bankruptcy. That's meant not only layoffs and warnings of reduced service but, as the utilities' debts mounted to a reported (but unsubstantiated) $12 billion, problems in securing enough credit to buy the power they needed. This winter, a season when California usually exports surplus power to the Pacific Northwest, the California Independent System Operator (Cal-ISO), which has been managing the grid since deregulation went into effect three years ago, has declared one power emergency after another. In January the rolling blackouts began. That the lights stayed on as long as they did was largely the result of federal emergency orders (issued by then-Energy Secretary Bill Richardson and temporarily extended by the new Bush administration) requiring private generators in the West to provide California the electricity it needed.</p>
<p>
But unless the Federal Energy Regulatory Commission (FERC), comes to the rescue with a long-term cap on wholesale prices--something it has steadfastly refused to do--the "never again" cross-of-gold part of Davis's speech will be mostly bluster. The measure of this disaster is that there are no quick fixes--or fixes of any kind--that aren't likely to cost Californians a bundle of money and, very likely, to deal California's economy a significant blow. Deregulation in California is dead; but re-regulation by the state, as even the consumer advocates now acknowledge, is nearly impossible.</p>
<p>
<font color="darkred"><big>A</big></font>lmost everything that could have gone wrong did go wrong. And everywhere, there are Bosch's little devils--corporate officers, politicians, regulators, economic theorists who believe that electricity is just another commodity like corn or cotton. As early as last summer, when San Diegans found that their electric bills had suddenly tripled, Paul Maslin, Davis's pollster, warned that this could be the "political equivalent of <i>The Perfect Storm</i>." San Diego retail prices, which had become the first to be unfrozen under the restructuring law, were quickly re-capped by a panicked legislature with an implicit promise to San Diego Gas and Electric that someone--the taxpayers, the ratepayers--would make up the difference between the capped retail price and the skyrocketing wholesale prices the utility was paying. To this day, no one knows who that someone will be.</p>
<p></p><p>The list of errors is almost endless. Enamored of the larger mystique of open markets and deregulation, and driven by large industrial energy consumers looking for cheaper prices, the California legislature rushed through AB1890, the deregulation bill, in a few short weeks during the summer of 1996, even though most members had no idea what the bill contained. In fact, there was almost no dissent from anyone: Environmentalists and consumer advocates had themselves been frustrated by what they regarded as bloated costs and the nuclear fiascos that ratepayers had been stuck with under the old system.</p>
<p>
The process under which AB1890 passed was known even then as "the Steve Peace death march" (for the bill's chief legislative advocate). At bottom it rested on wild and unfounded expectations. If the state's three private utilities--Pacific Gas and Electric, Southern California Edison, and San Diego Gas and Electric--were required to sell off their fossil-fuel power plants to independent generators (in many cases, out of-state corporations like Duke Energy or Dynegy or Reliant) and become primarily distribution systems, and if generation of electricity were deregulated and consumers allowed to shop for the cheapest source of power, new providers would automatically come in. The resulting competition would drive wholesale prices down.</p>
<p></p><p>What AB1890 ultimately did was almost precisely the opposite, trapping utilities between escalating wholesale prices and retail prices that had been frozen by law. The freeze was designed to protect consumers from price increases until the utilities' "stranded costs" were paid off through monthly surcharges on consumers' electric bills. (These stranded costs were essentially the unrecoverable debt on costly utility company assets, particularly nuclear plants that were expected to be uneconomical under deregulation.) With the one brief exception in San Diego, when the freeze was lifted and electric bills went through the roof, the utilities had no way to pass escalating wholesale costs on to consumers.</p>
<p><font color="darkred"><b>Electric Nimbyism</b></font></p>
<p></p><p>But the list of mistakes goes on:</p>
<p>
</p><li> There was the quaint notion that the extremely low mid-1990s price of natural gas--the fuel that powers roughly 40 percent of California's electricity generators--would stay unnaturally low forever. Instead, natural-gas prices have quadrupled in the past year (in large part because those very low prices discouraged new gas development). The gas-price increases don't come close to explaining the run-up in wholesale electricity rates, which, in the words of Jan Schori, general manager of the Sacramento Municipal Utility District (SMUD), "bear no relation to the cost of generation." But the optimism lasted long enough to prompt the state's environmentally conscious regulators to press for the decommissioning of coal- and oil-fired alternatives wherever possible, thus making the state still more dependent on gas.
<p></p></li><li> There was the gross underestimate, when deregulation was first discussed during the recession of the mid-1990s, of the power that a booming California economy would require five years later. In 1994, says Schori, state officials estimated that California had a 30 percent reserve margin in electrical supply and would have an ample supply until 2003 or 2004.
<p>
</p></li><li> There was the ill-conceived rule handed down by the California Public Utilities Commission (CPUC)--and abandoned only recently--that barred the utilities from signing long-term contracts for power, thereby making them hyper-dependent on the volatile spot market.
<p>
</p></li><li> There was the awkwardly structured power exchange and centralized marketing scheme created by AB1890. Supposedly intended to reduce collusion in bidding yet dominated by industry representatives, the complex arrangement made the whole system so opaque that there was no way for regulators or the public to know even after the fact whether there might have been collusion. As a result, says Commissioner Michal Moore of the California Energy Commission, "there is no viable price transparency."
<p>
</p></li><li> There was plain bad luck with the weather, and there were the uncertainties of the new market. Combined with California's nimbyism and its redundant environmental regulations, these factors discouraged new investment and made the siting and construction of new generating plants particularly slow and difficult. (This past December, even as there were warnings of blackouts, Cisco Systems, one of the Silicon Valley giants that's been driving up demand, was fighting vehemently--with the unanimous support of the San Jose City Council--to block the construction of a new power plant near the huge business complex the company is developing for itself.) AB1890 in no way conditioned the deregulation process on the development of new generating capacity, as some other states did, and virtually none came on line during the 1990s. Some plants have been approved and are now under construction, but most will not be ready for another two or three years. At the same time, the retail price structure had few formal inducements to curb demand.
<p></p><p>Unlike virtually all other commodities, electricity cannot be stored in any significant amounts; supply and demand have to be finely balanced by the transmission system. For 20 hours of the day, there may be ample capacity. But if demand spikes in the late afternoon or early evening, especially on days of extreme temperatures, the price paid for sufficient power to get through those four peak hours without blackouts can be astronomical. And everything sold on the spot market for any given period goes at the "market clearing price," which is the highest price paid for that period. In December wholesale power that in the previous year had cost an average of $30 per megawatt hour averaged $330 and was sometimes going for $1,200. </p>
<p></p><p>To this day, no one knows for certain whether there was illegal collusion among the generators or the electricity brokers--who have now become major players in the field--to withhold power from the market in order to drive up prices. Nor does anyone know whether the electricity generators who are also in the natural-gas business were exploiting the spiking gas market and making fat profits by selling gas while strategically staying off line until the price of electricity was driven up still further.</p>
<p>
What's certain is that on some days this winter, a season when there had never before been electricity shortages in California, as much as 25 percent of the state's generating capacity was off line--some because of scheduled maintenance, but an unusually large part as the result of "unscheduled events." The shortage was partly caused by the now famous inadequacy of the transmission lines between southern and northern California, which is now also the focus of some suspicion. In part it was the result of sellers' refusal to extend credit to the near-bankrupt utilities. But when Steve Larson, executive director of the California Energy Commission, told me that had it not been for those unscheduled events, the state would have had plenty of power, the strong between-the-lines inference was that the generators were manipulating the market.</p>
<p>
On one December day, the CPUC conspicuously launched surprise inspections of off-line plants; a month later, in his state-of-the-state remarks, Davis called for additional inspectors and for new laws making it a felony to "deliberately withhold power from the grid, if it results in imminent threat to public health and safety." Given the fact that it's virtually impossible to second-guess management decisions about plant maintenance, most of that was ineffectual posturing--especially on a day in January when Davis himself was about to join negotiations in Washington, D.C., aimed at stabilizing the state's power supply and convincing the generators to accept moderate-priced long-term contracts.</p>
<p>
But the suspicions are widespread. Even the FERC, which was locked into its free market ideology long before George W. Bush became president, has acknowledged that recent wholesale prices in California didn't meet the "just and reasonable" standard mandated under federal law, though the agency has taken no substantive action to enforce it.</p>
<p><font color="darkred"><b>Pennsylvania, the Un-California</b></font></p>
<p></p><p>For Americans as a whole, the great lingering question raised by the California story devolves to a simple matter of whether versus how: Is it just that California messed it up so badly, as the free market true believers contend? Would it have worked had it been done wisely? Or is deregulation in electricity service an inherently bad and unworkable idea? What if the state had not discouraged--indeed, prohibited--the privately owned utilities from entering into long-term hedge contracts? What if the utilities had not been pressured to sell all their fossil-fuel generating capacity? What if the state had moved more gradually, to make certain that there was adequate supply before moving on? What if it had made greater efforts from the very beginning to encourage conservation, as some of California's publicly owned utilities have been doing? What if the state had insisted on real-time metering (as urged by experts such as Severin Borenstein, director of the University of California Energy Institute), which would have enabled utilities to charge at least their large users something approaching the real cost of the peak-hour energy they were using, thereby reducing demand for the costliest chunks of power? In a market-based system, shouldn't consumers, especially large industrial users, pay the real cost of reliable power? </p>
<p></p><p>Pennsylvania, which started down the deregulation road shortly after California did, is often cited by defenders of deregulation as a model--the un-California, as it were, where they did things right. Pennsylvania capped retail prices by law during a transition period intended to last, in some cases, until 2010. The utilities that could buy power for less would make a profit; those that did not would have to eat the loss, and unlike California, they could not defer the costs. But the Pennsylvania utilities were not required to sell any of their generating plants, and those that did were required to enter into long-term contracts with the buyers at moderate (and stable) prices to buy power from the plants they had just sold off. In an effort to encourage competition, the state also set up an accessible system that allows consumers to choose alternate suppliers--and in some regions, as many as 15 percent of users, most of them residential consumers, have done so. Sonny Popowsky, the official consumer advocate of Pennsylvania, has asked Congress to grant the FERC greater authority to control wholesale prices. But on the whole, he says, the state's partial deregulation--he calls it a restructuring--is working.</p>
<p>
A year ago, however, everything seemed to be working in California as well. The message that California is now sending has caution written all over it. About half the states have started down the road to deregulation. But as the rising cost of natural gas drives up prices, and as the bad news comes in from the Golden State, states that had been marching down that road--New Mexico, Nevada, Arkansas, Mississippi, Oregon, Montana--are all having sober second thoughts. Colorado, which, in the view of outside experts, did the only careful analysis before it leaped, last year backed away from restructuring. In Vermont, Governor Howard Dean has said he was glad the legislature resisted him two years ago when he called for deregulation.</p>
<p></p><p>Such second thoughts are powerfully reinforced by the slow emergence of fundamental economic arguments pointing out how different electricity is from all other commodities--or from phone service or the airline industry. In an important analysis, Richard Rosen--executive vice president and director of the Energy Group at the Tellus Institute, a Boston consulting firm--and two of his colleagues conclude that "even under the best of circumstances, the deregulation of the electric industry cannot be trusted to deliver on its many promises."</p>
<p></p><p>They note that some marginal increases in efficiency would occur in an ideal market--the unlikely situation in which "participants would ignore their own self-interest and refuse to engage in strategic bidding and other means of exercising market power." But even those benefits would not compensate for the difference between the high marginal cost of new supply, which is what market rates are based on, and the generally lower average embedded cost of existing supplies, which is the basis for regulated rates. "That means, by definition, that most states cannot expect market prices to be lower than regulated rates would have been in the near future unless deregulated markets can generate large efficiency improvements that regulated rates cannot." In an unregulated market like California's, moreover, there is no mechanism to guarantee adequacy and reliability of supply. In theory when supply threatens to run low, new generators will enter the field; but because of market uncertainties, restrictions to access, and other constraints, that's hardly assured. </p>
<p>
Combine that with rising natural-gas and oil prices, which raise the price of all energy, and with the possibility (in Rosen's worst-case scenario) of players "who see much greater gain in gaming the market than in going after the elusive and difficult goal of streamlining their business for competitive advantage," and the country "could lose the huge benefits that we previously had from low embedded cost types of generation such as hydro and coal." In addition, a deregulated system would offer few incentives to encourage research and development of more environmentally friendly or socially desirable energy sources.</p>
<p>
Rosen and his colleagues also raise the multibillion-dollar issue of stranded costs. When California's restructuring bill was passed in 1996, it allowed the three utilities to recover from ratepayers some $17 billion the companies still owed on their nuclear and other supposedly "uneconomic" plants. But given the huge run-ups in rates, those plants are now worth far more than was assumed five years ago. Rosen warns that "unless stranded costs are adjusted strongly downwards in the near future, ratepayers may lose more money by overpaying for these stranded costs" than they would have paid for them under regulation. In California the ratepayers are shelling out billions for stranded costs even as they're about to shell out more and more for the electricity that those "uneconomic" plants are producing. But here too, as Rosen says, "the basic story is yet to be told."</p>
<p>
An ongoing audit by the CPUC has been trying to determine how much of the utilities' professed $12-billion debt for wholesale power is real and to what extent it's merely an accounting trick in which income--particularly from the sale of power from plants the companies and their subsidiaries own outside California--goes into one corporate pocket even as the other pocket is turned inside out. The Ralph Nader advocacy group Public Citizen recently charged, for example, that while "two utilities claim to have racked up such significant losses that they are threatening to file for bankruptcy, their parent companies have embarked upon a billion-dollar spending spree, spending more than $22 billion on power plants, stock buybacks and other purchases that far exceed their alleged $12 billion debt from California operations." The question was sharpened in mid-January with the disclosure that PG&amp;E Corporation, the parent of Pacific Gas and Electric, had won FERC permission to restructure itself to shield the corporation's profits and stockholders from the subsidiary's debt. (The news had no impact on Wall Street, however, where the company's shares continued their downward slide.)</p>
<p>
But maybe the most telling argument about deregulation is also the simplest. As the California meltdown took its toll, publicly owned utilities like the Los Angeles Department of Water and Power (LADWP) and the SMUD, the Sacramento Municipal Utility District, were doing fine. The only effect on them was when they were forced under state law to share their electricity output to mitigate the blackouts caused by the mess in the rest of the system. Neither public utility was covered by the deregulation law; neither was forced to divest itself of generating facilities (and neither did), and, to the extent that they needed outside power, both protected themselves with long-term contracts. Both have also made extensive efforts to reduce demand through conservation. Neither has raised its rates. Indeed, at the LADWP, General Manager David Freeman has been selling surplus power into the grid and making bundles of money to apply toward retiring his utility's debt.</p>
<p><font color="darkred"><b>The Ratepayer Revolt</b></font></p>
<p></p><p>This story is obviously incomplete; it is not likely to be resolved for months and maybe years. In mid-January, as California's utilities faced bankruptcy and the state's power grid manager warned about--and then ordered--rolling blackouts, government officials grew ever more frantic in their search for possible solutions: legislation to give the state the authority to buy power under long-term contracts and sell it at cost to utilities that no longer have the credit to buy it from the generators and traders themselves; negotiations to find the probably unattainable price that the generators will accept and that will not prompt political disaster for the politicians involved; CPUC approval of a modest, 9-to-15-percent consumer rate increase for Southern California Edison and Pacific Gas and Electric; measures such as tax rebates for the buyers of energy-efficient appliances in order to reduce demand; a bill to stop the utilities from selling off the nuclear and hydro generating facilities that they still own; proposals to reorganize the boards of the power exchange and the grid manager to give control to representatives of the public rather than the industry. </p>
<p></p><p>In light of President George W. Bush's declaration that California could expect little in the way of federal intervention to get itself out of a mess that, in his view, was of the state's own making, none of those remedies alone is likely to be sufficient without the substantial rate increase that California politicians were doing contortions to avoid. That left only two serious possibilities: a takeover of the utilities by a bankruptcy judge (who would inevitably protect shareholders before ratepayers) or a radical voter-initiative calling for a state takeover of the entire power infrastructure--generating plants, transmission systems, the works--that would make even Proposition 13, California's tax revolt, seem mild in comparison. The initiative's sponsor, Harvey Rosenfield--the tempestuous consumer activist and former Naderite who managed Proposition 103, the successful initiative campaign in 1988 that cut California's exorbitant auto insurance rates--thinks this brewing revolt is like the one against auto insurance rates. But if the electric bills keep rising and the lights keep flickering, the populist potential is far greater. This is more like railroad freight rates in the 1890s than auto insurance rates in the 1980s.</p>
<p>
What's certain is that a lot of New California illusions are gone: about the marvels of deregulation, about the new economy, about Gray Davis's future as a presidential contender. This <i>is </i>a Bosch morality canvas: A panicking lot of politicians, Davis chief among them, are sinking ever deeper into a pit beyond their control. And so, very possibly, is the great California boom. In January, Intel, one of the shiniest Silicon Valley icons, announced that it would build no new facilities in California nor expand any existing ones--a reminder that economic tides can still shift precipitously, even in the Golden State. It's also a reminder that even in the highest high-tech economy--where so many believed so fervently in permanent immunity to the doings of government and the mundane matters of infrastructure--things can go to hell fast.
</p>
</li></div></div></div>Wed, 19 Dec 2001 19:04:09 +0000142003 at http://prospect.orgPeter SchragRegressive Recoveryhttp://prospect.org/article/regressive-recovery
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p><font class="nonprinting"><font size="+2">B</font>y now it has become a truism that the California economy, which fell further than the rest of the nation in the recession of the early 1990s, and took longer to recover, has come back vigorously and is now outpacing the national economy. That's true whether one measures the rise in jobs, personal income, or the state's overall output in goods and services. California's unemployment rate is still a full point higher than the national rate, but as the Center for the Continuing Study of the California Economy (CCSCE) summarized early in 1997, "the state has regained all the jobs lost between 1990 and 1994 [and] most economists expect that the California economy will grow in 1997 and 1998—outpacing the nation each year." </font></p>
<p><font class="nonprinting">More impressively, the recovery was led by what CCSCE calls "future high growth sectors": high technology; foreign trade, particularly with Latin America and the nations of the Pacific Rim; tourism and entertainment; and professional services—all sectors regarded as essential to the nation's long-term economic health. In large part, growth in those areas has replaced the jobs that vanished with the crash in defense spending on which the Golden State had been disproportionately dependent. </font></p>
<p><font class="nonprinting">All that, not surprisingly, has produced a whole new Golden State romance, particularly about the brash, open high-tech industries and the free market in which they thrive. "The emerging face of California—ethnically diverse, technologically advanced, entrepreneurial, globally minded and highly innovative—holds out an enormous promise for most of the state's residents," said Joel Kotkin, one of the prophets of Pacific Rim nirvana, in a breathless report issued last year by the New West Center. "Nowhere is California's lock on 'knowledge value' more obvious than in thefield of science-based industry. Despite the many predictions that California would lose momentum in those critical fields, the state has actually consolidated its dominant role as the premier center for innovation and research. The state's market share in high-technology employment has actually grown by one-third since the mid 1970s." </font></p>
<p><font class="nonprinting">But while the California comeback may arise from those "future high growth sectors," the recovery has economic and social characteristics that foreshadow a considerably more uncertain future. The state looks less and less like the old California dream and more and more like the Asian tigers and the other developing nations with which California, as a Pacific Rim trader, is so heavily engaged. </font></p>
<p><font class="nonprinting"><font size="+2">B</font>egin with the most obvious element. In the past two decades, as almost everyone now knows, the gap between the highest and lowest income brackets has been growing. But in California, once regarded as the place whose education system and social services promised almost unlimited opportunity to reduce those gaps, the problem has become even more worrisome. Last year, in the first major study of its kind, the Public Policy Institute of California found that the difference between the incomes of those in the highest 20 percent of the population and those in the bottom 20 percent was increasing much more sharply in California than in other states. This finding marked a significant shift—during the 1980s the gap in California also grew, but at about the same rate as other states—and it was all the more alarming because of the cause. PPIC concluded that, to put it simply, California's poor have been getting poorer faster than in the nation as a whole. </font></p>
<p><font class="nonprinting">Between 1976 and 1994, family income for the poorest tenth in America fell 13 percent; in California, PPIC reported, it declined 36 percent. For those in the second tenth, the national median was down 6 percent; in California, it was down 27 percent. Those deciles at the bottom, needless to say, are predominantly black and Hispanic. </font></p>
<p><font class="nonprinting">There may not be so much mystery about all this. </font></p>
<p><font class="nonprinting">With one exception (general managers), the five fastest- growing job categories in California are all semiskilled or unskilled occupations paying $6 or less per hour-waiters and waitresses; retail sales clerks; cashiers; and general office clerks. In a state like California, with its large population of unskilled aliens and the continued flow of illegal immigrants from Mexico and Central America, the story should be even more obvious. There is—enhanced border controls notwithstanding—a nearly unlimited supply of cheap labor, not just for farm work, but for the burgeoning Southern California garment industry, the growing ranks of the various service industries, and virtually anything else that can use unskilled workers. (With this kind of labor supply, and with large numbers of people being driven from welfare rolls to compete with the rest of the low-wage labor force, it's hard to imagine why Alan Greenspan worries so much about inflation.) </font></p>
<hr size="1" /><center><font class="nonprinting"><a href="/subscribe/"><img alt="Subscribe to The American Prospect" border="0" src="/tapads/mini_subscribe.gif" /></a> </font></center><br /><hr size="1" /><p><font class="nonprinting">And so while the cheering goes on for the stars of DreamWorks and other high-flying Hollywood ventures, for the new fusion of computer and graphics technologies, and for the unique economic vitality of the interlinked companies of Silicon Valley with its large numbers of foreign-born entrepreneurs, engineers, technicians, and scientists (in terms of ethnicity and gender, Silicon Valley may be the most highly integrated and diversified job site in the world), almost no one has noticed the other half of this economy, which has been growing just as rapidly. Agriculture and canning in California now employ an estimated 500,000 workers, more than all the high-tech manufacturing put together, and, as Don Villarejo and CIRS, the California Institute for Rural Studies, have pointed out, the number seems to be rising as growers shift from field crops like wheat to more-intensive, high-value produce—which is less mechanized and requires more hard labor. The result is a combination of higher production and lower wages. </font></p>
<p><font class="nonprinting">Many of those workers remain officially invisible. CIRS recently demonstrated, complete with maps, that there are thousands of people living in garages, tool sheds, and the other "back houses" of California Central Valley towns like Parlier. Nobody has recorded these people's existence—not the Census Bureau, not the Bureau of Labor Statistics, not the Department of Health and Human Services, nor anyone else. Their existence is far closer to John Steinbeck's California of the 1930s than to anything being cheered by the Center for the New West. Farmworker wages, now averaging about $6,500 a year, are down everywhere in America, but they have fallen considerably more in California, down from just over $6 an hour in 1985 to just over $5 (compared to a national average of just over $6 nationally) in 1996. On the job, many still have no access either to drinking water or toilets; few get employer-paid health benefits. </font></p>
<p><font class="nonprinting">The same goes for the thousands of workers in the garment industry. The apparel business is virtually the only sector of California manufacturing to add substantial numbers of jobs between 1990 and 1996. Despite recent efforts to foster collaboration among unions, manufacturers, and retailers in securing compliance with the minimum wage and other basic labor standards, thousands of people continue to work in sweatshop conditions. </font></p>
<p><font class="nonprinting">Surveys by the state Controller's Office, among others, bolstered these findings by showing that even in glamour sectors like Silicon Valley, a growing percentage of the jobs go to contingent workers—people who have neither permanent jobs nor the benefits that used to come with them. That in part explains another California anomaly: While the state has some of the nation's most liberal Medicaid eligibility rules (and still covers a relatively generous menu of services), it also ranks among the top ten states in the nation in the percentage of its population—nearly a fourth—that has no health insurance at all, and in the percentage of births where the mother had no prenatal care in the first trimester. California, which has led the country into managed care, now also seems to be leading it into the new world of the working uninsured. </font></p>
<p><font class="nonprinting"><font size="+2">A</font>ccompanying—and exacerbating—the growing gap in incomes is the tax shift that took place in the past five years. California's tax structure has always been relatively progressive, but the recent shifts have made it less progressive than it once was. </font></p>
<p><font class="nonprinting">To cope with severe budget shortfalls of the early 1990s—some caused by the recession, some the result of the revenue limitations written into the state constitution by Proposition 13 and the series of other tax-cutting measures that followed in its wake—Governor Pete Wilson and the state legislature, then controlled by Democrats, made a deal in 1991 sharply curtailing public services and increasing taxes where they could. Those tax increases fell in roughly equal proportions on all economic brackets. Chief among them was the addition of two new upper-income brackets to the state income tax; the suspension of the renters' tax credit, which had gone largely to low- and moderate-income taxpayers who got no mortgage-interest deduction; an increase of 1.25 cents on the dollar in the sales tax plus a hefty increase in motor vehicle license fees, both paid disproportionately by moderate-income earners; and extension of sales taxes to such things as bunker fuel (for ships) and aircraft jet fuel. </font></p>
<p><font class="nonprinting">But last year, after the recession ended, Wilson and the legislature repealed or allowed to lapse those taxes that had hit primarily upper-income taxpayers; it left in place those taxes that primarily hit poor and low-income families. Thus the renters' tax credit suspension was extended again and seems on the verge of becoming permanent, effectively raising taxes for low- and middle-income people by some $500 million a year; the sales tax increase became permanent and the increase in vehicle license fees remained in effect. But the state allowed the upper-income tax brackets to sunset, repealed the sales tax extensions on jet and bunker fuel, and reduced a variety of other business taxes. What had been a $7.3 billion tax increase that fell more or less evenly across economic groups thus became a $5.6 billion increase that fell almost entirely on poor and middle-income taxpayers—and this all came on top of an additional $1.6 billion in business tax reductions that California had enacted between 1991 and 1996. Last November, when it appeared that a labor-backed initiative restoring the upper-income tax brackets might have a chance of passing, the leaders of the state Chamber of Commerce, diverting funds from another initiative campaign, dumped more than $2 million into the drive, ultimately successful, to defeat it. </font></p>
<p><font class="nonprinting">The tax shift has been further compounded by reductions in public services and higher fees for what remains. Over a three-year period, tuition doubled in what was once a model system of low-cost public higher education. Meanwhile, the state reduced county services in everything from public libraries to child-abuse prevention programs. The public school system, which has been deteriorating for twenty years, still suffers. Even with a new influx of state funding, California is still about fortieth among the states in what it spends per pupil; its facilities and materials—whether measured in leaky roofs and peeling paint or in the number of computers per student—are among the worst in the modern world. Even in highway maintenance and construction, California, once the symbol of the nation's romance with the automobile, is now judged (in the ratings of the U.S. Department of Transportation) to have some of the most deteriorated roads and bridges in the country. </font></p>
<p><font class="nonprinting">More broadly, just as California's minorities increasingly must depend on those once-exemplary services, the shifts of the past 15 years have engulfed the state in a fee ethic of increasingly privatized services, which dictates that wherever possible (which means everything but public safety, and sometimes even that), it is the immediate beneficiaries of any given public service who should pay the lion's share of it. Why should we pay for <i>their </i>schools? Why should <i>they </i>go to college for nothing? California, the home of Hollywood and the paramount symbol of entertainment in America, spends less per capita on public arts programs than South Carolina. </font></p>
<p><font class="nonprinting"><font size="+2">O</font>ne sector in which the new California <i>is </i>the unchallenged national leader is in the development of gated communities. According to Edward Blakely, the dean of the school of planning at the University of Southern California, nearly a million Californians now live in developments behind gates ranging from "elaborate two-story guardhouses manned 24 hours a day to roll-back iron gates to simple electronic arms." Even outside those gates, there aren't many affluent areas in places like Los Angeles or Palm Springs where neighborhood associations haven't hired private patrols: In the upscale West Side neighborhoods of Malibu and Pacific Palisades, the most common lawn sign is that of Westec Security with its large yellow letters warning "ARMED RESPONSE." </font></p>
<p><font class="nonprinting">To be sure, it's not just Californians who are looking for gates, fences, and armed patrols. Nor is it just the rich. A growing number of middle-class apartment and condo projects in places like the San Fernando Valley have erected road barriers and other security devices to keep strangers out. Sometimes even the poor in subsidized housing ask for gates. But that only reinforces the point. The fence segregates—by race, or class, or simply by aesthetic sensitivity—and declares no confidence in the commonweal. It means that no uninvited people appear on the streets—neither Jehovah's Witnesses passing out tracts nor environmentalists circulating petitions to protect the habitat of the snail darter and the fairy shrimp, to say nothing of homeless people pushing carts between shelter and soup kitchen. No one comes through the gate who is not invited by a resident. Whatever the combination of motives—fear, hope, fantasy—the social implications for community are obvious enough. Blakely, using data provided by the state's Building Industry Association, estimates that nine out of ten new middle- and upper-income housing developments in California are "forting up" as gated communities, many of them with their own police patrol and other privatized community services. </font></p>
<p><font class="nonprinting">Which brings this truncated story full circle. California, a state of 32 million people that will be less than half white shortly after the turn of the century, is widely regarded as the test for a nation that will itself become increasingly Hispanic and Asian. The question is whether in its economic and social ideals, California will evolve as an integrated community, or as a series of increasingly divided economic and social enclaves. Los Angeles Mayor Richard Riordan calls LA "the capital city of the future," but in its essential patterns, the new California slowly begins to look like Singapore, Caracas, or (until the summer of 1997) that model of Milton Friedman's unrestrained free markets, Hong Kong, and ever less like the old California dream. The new California glamour boys and girls—the computer whizzes, the graphic artists, the entrepreneurs and techies, the engineers and lawyers and traders, all fully cell-phoned and modemed, most operating in three time zones, if not in eight or ten—are far more connected to their peers in the high-rises of New York or London than to the minimum-wage barrios and the decayed public services down the street or outside the fence. </font></p>
<p><font class="nonprinting">In some respects, that was always the case. The optimists contend that in places like Los Angeles or San Jose we may merely be witnessing a replay of New York or Boston in the peak years of immigration and industrialization of the 1880s: Wait 'til those Latinos get a little more economic clout; wait 'til they really start voting. But as one looks both at the economic data and at the landscape, never, at least since the Depression, have the gaps between classes seemed as great in America as they are in the new California. Even as Pete Wilson was celebrating the state's powerful economic resurgence this spring, he was demanding more business tax cuts. </font></p>
<p><font class="nonprinting">This spring, the state's Industrial Welfare Commission, dominated by Wilson appointees flying the flag of global competitiveness and work-hour flexibility (though only at the option of the employer), voted to abolish the state's requirement that employers pay overtime to workers who put in more than eight hours in any given day. Henceforth, if the courts do not overrule the commission, there will be no overtime until a worker has done his or her forty weekly hours. California was one of the few states to have such a requirement, which was first established in the Progressive Era. In that respect, it might be said that the abolition of the rule only moved the state toward the rest of the country. But it also moved California another step closer to that two-tier global economy toward which the Golden State is so resolutely marching. </font></p>
<p><!-- dhandler for print articles --></p>
</div></div></div>Wed, 19 Dec 2001 18:48:05 +0000141126 at http://prospect.orgPeter SchragSchool Vouchershttp://prospect.org/article/school-vouchers
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> </div></div></div>Tue, 11 Dec 2001 00:01:30 +0000139207 at http://prospect.orgPeter SchragThe Diversity Defensehttp://prospect.org/article/diversity-defense
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p><font class="nonprinting">If patriotism is the last refuge of a scoundrel, is social science the last resort of a losing cause? We may not know the answer for some time, but there's no question that some of the heaviest hitters in the fight to preserve race preferences in college admissions are now desperately trying to convert the findings of social research into an argument for what lawyers for the University of Michigan call "the compelling need for diversity in higher education." With the strong backing of the Office of Civil Rights of the U.S. Department of Education, they are also trying to prove that some of the traditional measures colleges use in admission—test scores in particular—are biased and unrelated to college success. </font></p>
<p><font class="nonprinting">The attempt is understandable, but it's likely to be an uphill fight, and not a pretty one. In the past half a dozen years or so, the news for the defenders of race preferences in such things as public contracting and university admissions has been almost invariably bad, both in the courts and at the polls. And with major new attacks now being launched, a lot of activists are fearful that the entire legal basis of race preferences in university admissions is in jeopardy, even for private institutions. That legal basis, which rests largely on Lewis Powell's opinion in the 1978 case Regents of the University of California v. Bakke, has already been declared invalid by one federal appellate court (in Hopwood v. Texas, 1996) and is now being challenged again in the two major reverse discrimination suits for which the University of Michigan has assembled its "compelling need" arguments. Among lawyers trying to persuade the courts, "compelling need" and "compelling interest" are magic phrases—trump cards to justify devices, like race preferences, that would otherwise be blatantly unconstitutional. </font></p>
<p><font class="nonprinting">For anyone who has not kept score in this fight, here, roughly, is where things stand. In the past three years, voters in California and Washington State passed nearly identical measures outlawing racial preferences in all public employment, contracting, and education. Now Ward Connerly, the California Republican who was the chief backer of those initiatives, is running a campaign to get a similar measure on the Florida ballot next year—despite the objections of Governor Jeb Bush, who fears it will be divisive at the very moment his brother, running for president, is trying to broaden the base of the Republican Party. Connerly's real hurdle will be getting some version of his proposal past the legal scrutiny of a Florida Supreme Court that, in the words of Connerly's campaign manager Herb Harmon, "is much inclined to take initiatives off the ballot." But if Connerly succeeds with the judges, passage should not be too difficult; the polls show that more than 80 percent of the voters support it. Thereafter, Connerly says, he wants to try to run a similar measure in Michigan or Colorado. </font></p>
<p><font class="nonprinting">But for the defenders of race preferences, the far bigger threat comes from the federal courts, which have imposed increasingly tough standards on every race-conscious measure that's not narrowly tailored to remedy a specific case of immediate past discrimination. In Adarand v. Pe–a (1995), the U.S. Supreme Court severely restricted the use of racial set-asides in federal contracting; in Shaw v. Hunt (1996), it overturned racial gerrymandering in drawing legislative and congressional districts; in Podberesky v. Kirwan (1995), it declined to review a lower court decision striking down a University of Maryland scholarship program for blacks. Then, last November, a federal appellate court in Massachusetts struck down the race-based admissions formula at the selective Boston Latin School, the oldest public school in the country. And, in a further sign of the times, the NAACP, apparently fearful that the Boston case would become an unfortunate national precedent if the Supreme Court declined to hear it or ruled against it, persuaded the Boston School Committee not to appeal the decision. Meanwhile, suits filed by the conservative Center for Individual Rights (CIR) challenging race-based admission policies at the University of Michigan, the University of Michigan Law School, and the University of Washington Law School are making their way through the federal courts. In all three, CIR not only charges violations of Powell's Bakke standard, which permits the use of race as one "plus factor" in choosing an intellectually and socially diverse student body, but also, following the Hopwood decision, attacks Bakke itself as "a singular" opinion that is no longer constitutionally valid—if indeed it ever was. Powell, CIR argues, was the swing justice on a Court that was sharply divided, and while his decision determined the outcome, no other judge supported his reasoning. </font></p>
<p><font class="nonprinting">Constitutional lawyers like Professor Robert Post of the Boalt Hall Law School at Berkeley believe that the federal courts will "ratchet up" Bakke, meaning that they will make it even tougher to use race, without actually overturning the Bakke decision. But it could just as easily be argued that Powell never contemplated an undergraduate admissions system that used race as blatantly as the University of Michigan or, until the regents stopped it in 1995, the University of California. Michigan has acknowledged that while it doesn't have nearly enough places for every qualified applicant at Ann Arbor and thus rejects thousands of qualified whites, it does admit virtually every qualified black. The chances for admission for whites with high grades and test scores are thus considerably lower than the chances for blacks with lower scores. </font></p>
<p><font class="nonprinting"><a name="insertedsection" id="insertedsection"></a><a href="#nextsection">Article Continues &gt;&gt;</a> </font></p>
<table align="center" bgcolor="#dddddd" border="3" cellpadding="4" cellspacing="0" width="85%"><tbody><tr><td>
<p><font class="nonprinting"><font class="nonprinting"><b>Color-Blind Affirmative Action?</b></font></font></p>
<p><font class="nonprinting"><font class="nonprinting">What would a school that sought out disadvantaged students based on economic status—rather than racial background—look like? Very different from one that uses race-based affirmative action. At least, that's the conclusion one would draw from Lowell High School, in San Francisco. The students entering the elite magnet school this fall are the first class to be admitted since the school district agreed last February to end its racial desegregation consent decree. Under the new admissions policy—which may take special account of applicants' economic background but not their race—the number of African-American eighth graders accepted to the Lowell class of 2003 dropped from 5.6 percent last year (44 of 789 accepted students) to just under 2 percent (17 of 864 accepted students). The percentage of accepted Latino students fell from 11.4 percent to 5.4 percent. </font></font></p>
<p><font class="nonprinting"><font class="nonprinting">The change in policy is the result of a 1994 lawsuit brought by Chinese-American families who challenged the city's 1983 desegregation ruling, which capped admission at magnet schools like Lowell at 40 percent of any ethnic group. The plaintiffs argued that, due to their relatively large numbers, Chinese-American children had a more difficult time getting into the schools of their choice. At exam schools like Lowell, Chinese- American students had to score significantly higher than even Caucasian students to secure a slot. </font></font></p>
<p><font class="nonprinting"><font class="nonprinting">In response to the lawsuit, Lowell voluntarily eliminated race quotas in 1996. Since then—at least until this year—they had been using a system whereby applicants were assigned points based on grades and test scores, up to a maximum of 69 points. Any student who scored above 65 was automatically accepted. Once all the high scorers were accepted, the remaining seats (generally about 20 percent of the class) went to students whose lower scores were boosted by the addition of certain "diversity points." African-American, Latino, and Native American students received bonus points, as did students coming from disadvantaged backgrounds or students who demonstrated high indications of success despite less-than-stellar academic records. Slots made available by students who were accepted but didn't matriculate almost always went to African-American or Latino candidates, regardless of whether they had made the cut-off point. </font></font></p>
<p><font class="nonprinting"><font class="nonprinting">But following the February settlement, which was approved by a U.S. District Court, San Francisco schools agreed officially to phase out race caps by 2002. The Lowell School agreed to go totally "color-blind" this fall—but also announced that it would remain committed to maintaining a diverse student body. How do you preserve racial diversity without considering race in the equation? Lowell administrators came up with some creative responses. </font></font></p>
<p><font class="nonprinting"><font class="nonprinting">The list of "value-added" circumstances grew longer. Students from particular neighborhoods were given a bonus "diversity" point. Living in public housing or participating in the free-lunch program earned students a point. Points went to recent immigrants and non-native English speakers. Children whose parents did not complete high school could expect to move up a notch on the admissions scale, as could children from single-parent homes. </font></font></p>
<p><font class="nonprinting"><font class="nonprinting">Yet despite these efforts, the admissions process resulted in dramatically fewer invitations to African-American and Latino students. And as of this writing, the school committee had no formal plan for evaluating the issue of diversity at Lowell. With African-American and Latino admissions down by more than half, the question may have to be re-examined—the judge indicated that if resegregation were to occur in the aftermath of the caps' elimination, the case should be reopened. Of course, with traditional race-based affirmative action programs coming under fire around the country, San Francisco deserves credit for trying to find new solutions to complex racial problems. And the data so far are limited. But if Lowell turns out to be typical, it looks like progressives who support affirmative action in education still have their work cut out for them. </font></font></p>
<p align="right"><font class="nonprinting"><font class="nonprinting">—Joanna Mareth </font></font></p>
</td>
</tr></tbody></table><p><font class="nonprinting"><a name="nextsection" id="nextsection"></a><a href="#insertedsection">&lt;&lt; Previous section</a> </font></p>
<p><font class="nonprinting">The university justifies the policy by invoking the educational and social benefits of "diversity," a word that comes from Powell's opinion and which at the time of the Court's ruling meant a wide range of backgrounds, experiences, and interests. In the two decades since Bakke was decided, however, the meaning of the word has been effectively narrowed to refer primarily, if not entirely, to race. And it's in the context of that new meaning that a lot of people are now trying to enlist social science research. </font></p>
<p><font class="nonprinting">Late in May some of the most prominent civil rights leaders—lawyers, academics, social activists—met at Stanford to discuss the draft of a document outlining the evidence. Among them were: Bill Lann Lee, President Clinton's embattled acting assistant attorney general for civil rights; Theodore Shaw, the associate director-counsel of the NAACP Legal Defense and Education Fund; William Taylor, vice chair of the Leadership Conference on Civil Rights; and William T. Trent, a University of Illinois sociologist who has been a frequent expert witness on the educational benefits of school integration and diversity. The trouble is that neither the draft—which is titled "Compelling Interest: Examining the Evidence on Racial Dynamics in Higher Education"—nor the materials submitted to the courts by the University of Michigan, nor the various other pieces of purported scholarship produced in the cause are likely to be very persuasive. </font></p>
<hr size="1" /><center><font class="nonprinting"><a href="/subscribe/"><img alt="Subscribe to The American Prospect" border="0" src="/tapads/mini_subscribe.gif" /></a> </font></center><br /><hr size="1" /><p><font class="nonprinting">In some cases, the research, much of it conducted by advocates in the form of attitude surveys based on predictable questions, seems to prove the obvious: that students who attend integrated colleges and classes will be exposed to a wider spectrum of ideas and views, thus learning more and becoming more open to interaction with others. Since many students do come from highly segregated schools and communities, it's argued, a diverse university campus may be the only opportunity for such exposure. Graduates of such programs, according to the studies, are more likely to live in integrated communities, which is obvious—a little like saying that those who go out for tennis in college are more prone to be playing tennis at the age of 60. </font></p>
<p><font class="nonprinting">In others, the research blithely ignores contrary evidence and experience. A few years ago, Michigan conducted a longitudinal survey of those who entered college in the fall of 1990, which found that while students grew slightly more positive about affirmative action, 66 percent of whites agreed that "students of color are given advantages that discriminate against other students." More than half of the whites and over a third of the black students in the survey believed that the university's efforts to foster diversity caused more division than understanding. The report makes no mention of this study. Nor does any of the research even allude to the record of racial tension at places like the University of Massachusetts or to the speech codes and the other attempts to end tensions by enforcing political correctness at places like the University of Pennsylvania or the University of Wisconsin, or, indeed, at Michigan itself, where a restrictive speech code was struck down by a federal court back in 1989. </font></p>
<p><font class="nonprinting">None of those things argues against integration or diversity; they just cast doubt on the contention that when an admissions office leans on the scale to bring in more underrepresented minorities, wonderful things automatically follow. At the very least they reinforce arguments of conservatives like Shelby Steele that where the admissions process is perceived to be unfair and the resulting decisions are regarded as illegitimate, the price in resentment may be intolerably high. In any case, even if the social science evidence were more powerful, it is unlikely that it would persuade the courts that racial diversity on campus is a compelling state interest justifying all sorts of decisive race preferences in the admissions process. One of the people at Stanford asked the telling question: How many people of which color do you need to achieve diversity? To which one might have added the question: How heavily can you lean on the scale to achieve it? Michigan allows as much as 20 points of a possible 150 to be based on race—less than the total weight given to grades, but as much or more than that given to most other categories. That surely isn't what Powell had in mind. </font></p>
<p><font class="nonprinting">The controversy does raise one important and possibly portentous issue. What precisely is merit and how should it be judged? That question goes far beyond the reliability of measures like SAT scores, which are coming under increasingly sharp attack, even from the feds at the Office of Civil Rights, who recently put colleges on notice that "the use of any educational test which has a significant disparate impact on members of any particular race, national origin or sex is discriminatory and a violation [of federal law] unless it is educationally necessary and there is no practicable alternative . . . ." In The Shape of the River, William G. Bowen and Derek Bok's defense of race preferences in the Ivy League and other elite institutions, they contend that merit has little bearing on who "deserves" to go to college and a lot to do with the individual's potential contribution to the richness of his or her institution and, ultimately, his or her value to the larger society. That's more than a hypothetical issue since every judicial step to curb race preferences will increase pressure to redefine merit by de-emphasizing tests and similar quantitative measures and finding other ways to favor minority admissions in selective institutions. </font></p>
<p><font class="nonprinting">Which, of course, is one of the reasons that race preferences are such a hot issue at elite colleges that want to select students with astronomical test scores while, at the same time, maintaining some legitimizing ethnic diversity. At the Stanford meeting, there were dire warnings about the impending resegregation of American higher education if what the participants call affirmative action is struck down. </font></p>
<p><font class="nonprinting">But the issue has little bearing on the majority of institutions, which are, at best, only marginally selective. And while Bowen and Bok assert that a great many black leaders in this country are beneficiaries of affirmative action, most U.S. leaders—in business, in state and local government, in civic organizations—never saw the inside of an Ivy League college. Nor, of course, does it apply to the huge number of blacks and Hispanics who have neither the high school preparation nor the test scores to get them into the pool of candidates from which relatively selective public universities like Michigan or the University of California or the University of Virginia choose their students. The goal of a pluralist and multiracial society has now been broadly accepted by most American institutions. Only in the most indirect and symbolic sense does diversity in elite universities affect the pattern of opportunity, and of integrated living and working, for the vast majority of Americans. For them, the debate about standards at elite institutions is largely irrelevant. </font></p>
<p>
<!-- dhandler for print articles --></p>
</div></div></div>Mon, 10 Dec 2001 22:44:56 +0000140824 at http://prospect.orgPeter SchragMuddy Watershttp://prospect.org/article/muddy-waters
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p><font color="black"><font size="2">I</font>f anything is certain about <i>The Shape of the River</i>—William G. Bowen's and Derek Bok's massive defense of race preferences in university admissions—it is this: the book will become a primary source in every debate and lawsuit involving affirmative action for the next decade, and maybe longer. It's a book that will launch a thousand footnotes. </font></p>
<p><font color="black">And that was clearly part of the authors' intention. They remind us that in 1978, when Justice Lewis Powell wrote the Supreme Court's opinion in the seminal <i>Bakke v. Regents of the University of California </i>case, he was willing to take on faith the word of university officials that diversity, including ethnic diversity, was an important asset in the education of university students. But this is a different age, with a different Court. Race preferences have already been prohibited in three parts of the country: by nearly identical voter initiatives in California and Washington State, and by a federal appellate court in Texas, Lou isiana, and Ark ansas. Preferences are under political and legal attack elsewhere as well—a pair of major cases challenging admissions practices at the University of Michigan will come to trial this June—and the issue is almost certain to return to a Sup reme Court that has begun to take an increasingly dubious view of affirmative action programs. <i>Bakke</i> itself, which allows universities to use race as one "plus factor" in choosing students, and which has been ruled a dead letter in <i>Hopwood v. Texas</i>, could be in jeopardy. The defenders of affirmative action urgently need good data. </font></p>
<p><font color="black">And good data are precisely what the authors mean to provide. Both Bowen and Bok are former presidents of elite universities (Princeton and Harvard, respectively) that have long considered race as a plus in their admission practices. In <i>The Shape of the River</i>—the title refers to a quotation from Mark Twain's <i>Life on the Mississippi</i> about the need to know the whole shape of the river in order to navigate it—they have put together a vast amount of statistical data in an effort to demonstrate not only the success of university race preferences in the subsequent careers of thousands of individuals, but, by extrapolation, the central importance of affirmative action in creating a black upper middle class in Amer ica. </font></p>
<p><font color="black">The statistics come from a large database called College and Beyond (C&amp;B) that was created by the Mellon Foundation, which Bowen now heads. The database tracks some 45,000 students who entered one of a sample of 28 selective colleges and universities in two years, 1976 and 1989. The 28 institutions are broken into three groups. The most selective schools—with average SAT scores of at least 1300—were Bryn Mawr, Duke, Princeton, Rice, Stanford, Swarth more, Williams, and Yale; the next most selective (with average SATs between 1151 and 1300) were Barnard, Columbia, Emory, Hamilton, Kenyon, Northwestern, Oberlin, Smith, Tufts, the Uni versity of Pennsylvania, Vand erbilt, Washington University, Wellesley, and Wesleyan; in the third rank of selectivity (average SATs of 1150 or below) were Denison, Miami University of Ohio, Penn State, Tulane, Mich igan, and the University of North Carolina. Four of the institutions are public; the rest are private. Only two are in the West or South west. The database includes information on everything from each entering student's ethnicity, gender, SAT score, and college grades, to any graduate school he or she attended and his or her income and community activities long after graduation. These data are supplemented with extensive interviews with those graduates about their undergraduate experiences and particularly their relationships with students of other races. Unfortunately, though perhaps understandably, given its time frame and its focus on eastern colleges, the database concerns itself almost entirely with the results of affirmative action for blacks, not with the growing proportion of Hispanic students now going to college. And since Bowen and Bok have detailed admissions data from only five of those institutions—all private—the picture is even more limited. Still, it's probably the most ambitious such study ever undertaken. </font></p>
<p> </p>
<p> </p>
<p><font color="black"><b><font size="2">B</font></b>ut if <i>The Shape of the River</i> is an explicit attempt to demonstrate the success of race preferences in the admissions policies of those 28 institutions, it has an equally important, though perhaps unintended, subtext: the way elite institutions exploit their powerful role in selecting and certifying people for preferred positions in American society. At its core, therefore, it is almost as much about the confounding relationship between class and merit as it is about race, as much a defense of the way people are chosen and vetted by our elite colleges as an argument for race preferences in that process. It is, at bottom, a bold—and, in these days, a rather rare—assertion of establishment prerogatives in a very select category of institutions. Unfortunately that also makes their mass of data, for all its heft, of limited use in any broader examination of the consequences of race preferences, even in higher education. Their conclusions don't even seem to be very applicable to some of the institutions in their own survey which do not fall within that most select category. </font></p>
<p><font color="black">Bowen and Bok acknowledge that the blacks in the 28-institution survey entered with far lower average SAT scores than whites—blacks with combined verbal and math scores between 1200 and 1249 had a 60 percent chance of being admitted; whites had a 19 percent chance. And not surprisingly, blacks earned significantly lower grades in college. The average black student's grade point average (GPA) is at the twenty-third percentile of the survey group; the average white's is at the fifty-third percentile. But Bowen and Bok also point out that, contrary to critics like Stephan and Abigail Thernstrom, who argue that affirmative action fosters black failure by putting students into colleges that are too demanding for them to compete successfully, blacks who attend the most-selective institutions—even those admitted with relatively moderate SAT scores by the standards of the 28 institutions—graduate (within six years) at a higher rate and enjoy more subsequent success than those with similar SAT scores who attend less-selective institutions. </font></p>
<p><font color="black">This pattern persists through life. After graduation, while black men earn somewhat less than their white classmates, black graduates of select institutions, male and female, get advanced degrees at the same rate as their white classmates. They earn considerably more than average white college graduates from run-of-the-mill universities, are more active in community organizations, and seem more satisfied with their college experience. At the same time, support for affirmative action seems reasonably high both among white and black alumni at most of these more-selective schools. More important, black graduates of these colleges now make up a substantial proportion of the black leadership class in America—as partners in law firms, public officials, corporate officers, and in other leadership positions. </font></p>
<p><font color="black">As Bowen and Bok relate in their book: </font></p>
<p> </p>
<p><font color="black">To take but a single illustration: since starting to admit large numbers of black students in the late 1960s, the Harvard Law School has numbered among its black graduates more than one hundred partners in law firms, more than ninety black alumni/ae with the title of Chief Executive Officer, Vice President or General Counsel of a Corp oration, more than seventy professors, at least thirty judges, two members of Congress, the mayor of a major American city, the head of the Office of Man agement and Budget, and an Assistant U.S. Attorney General. </font></p>
<hr size="1" /><center><font color="black"><a href="/subscribe/"><img alt="Subscribe to The American Prospect" border="0" src="/tapads/mini_subscribe.gif" /></a> </font></center><br /><hr size="1" /><p> </p>
<p><font color="black">If you get admitted to Yale or Princeton or Williams or Stan ford, in other words, your chances of graduating are higher, regardless of race, despite your modest test scores and relatively weak academic performance in college, than if you went to a less-selective place. And what follows from this, of course, is that you also have better chances of getting into a good professional or graduate school (where your chances of graduation are also high), of making useful career connections, and of landing in a prestigious law firm or corporate office and thereby making lots of money. </font></p>
<p> </p>
<p><font color="black"><b>The Old College Try </b></font></p>
<p><font color="black">Bowen and Bok say—a little disingenuously—that they're not certain exactly why this is true. Is it because the selective institutions pick better students, or is it because they do a better job educating them once they get there? They tilt toward the latter explanation, suggesting that the rich resources of the elite colleges provide sufficient help, and provide it soon enough, that most of their students make it. What they don't say is that institutional wealth and prestige make up for a lot of deficiencies. More to the point, this is hardly a new phenomenon. Long before there was affirmative action, it was common belief that one had to do something really dreadful to get tossed out of Harvard or Yale. And once you had the degree—the college tie that prestigious institutions provided—other doors opened up as well. Grad uation from an elite institution makes you a member of a selective club. "The more selective the school," as Bowen and Bok say, "the more the student achieved subsequently." (The same thing appears to be true for many medical schools.) The big hurdle has always been getting in, not getting a degree. </font></p>
<p><font color="black">Call it the Ivy bonus. There was a time a couple of generations ago when there was a lot of talk in higher education—and in the elite colleges particularly—about the well-rounded man and the gentleman's C. Charitably, these terms applied to students who weren't academic stars but had other desirable attributes—as athletes, musicians, poets, sons of alumni, farm boys, and the deserving poor—that the college considered beneficial, even if only because their admission would guarantee the continued engagement or financial support of alumni. Uncharitably, this group also included a high concentration of wealthy and well-connected WASPs from Deerfield or Andover, who skated through in their white shoes and went straight to cushy jobs on Wall Street and Madison Avenue. </font></p>
<p> </p>
<p> </p>
<p><font color="black"><b><font size="2">S</font></b>tandards, presumably, are tougher these days. It's probably correct that, as Bowen and Bok argue, everybody who attends the most-selective institutions on their list these days is well prepared. While they estimate that more than half of the black students in their survey would not have been admitted without consideration of race, Bowen and Bok try to remind grumpy alumni from the good old days that today's entering blacks have higher average scores and far richer academic backgrounds than did the white boys in the class of 1940. In any case, they argue, merit is not defined solely as high grades and test scores; it depends greatly on "what one is trying to achieve." The job of admissions officers—"an eclectic and interpretive art," they call it—is not to determine "who has a 'right' to a place in the class, since we do not think that admission is a right possessed by anyone." What they do is choose those applicants "considered individually and collectively, [who] will take fullest advantage of what the college has to offer, contribute most to the educational pro cess . . . and be most successful in using what they have learned for the benefit of the larger society." But only a strong patrician institution that is immune from the political demands imposed on public universities could make such an assertion. </font></p>
<p><font color="black">Still, the old tradition has been a perfect fit for the new policies. To all the other characteristics, we've simply added race—which, as Powell said in <i>Bakke</i>, could pass constitutional must er as another "plus factor" in a college's effort to achieve a rich and diverse student body. The gentleman's C presumably is gone, despite allegations like those of Lino Graglia, the University of Texas law professor who argues that affirmative action students—unable to compete with students admitted according to the regular process—seek out academic safe havens like black studies and multicultural studies where they find easier going and more support. Those charges seem to be false, at least in the C&amp;B schools. "Blacks and whites," Bowen and Bok write, "were equally likely to have majored in philosophy, economics, the natural sciences and engineering," while only a few majored in African-American or black studies. </font></p>
<p><font color="black">But if the gentleman's C is gone, the minority C seems to be alive and well. And it's at this point that Bowen and Bok open themselves to attacks from conservatives like Shelby Steele, who accuses these "two white guys" of "massaging data" that utterly fails, in his view, to demonstrate in any way that the affirmative action students are in fact "competitive," despite their subsequent high salaries and fancy-sounding jobs. "Those blacks," he said in an interview with me last fall, "are being artificially propped up through life"—career-long affirmative action babies getting breaks from guilty whites trying "to reclaim their moral authority." </font></p>
<p><font color="black">The hollowness of their argument, Steele charges, is underlined by the authors' use of community involvement as one of the criteria of success. Since it's largely the marginal people in big organizations—those who won't make it to the very top—who comp ensate by immersing themselves in such activities, Bowen and Bok inadvertently prove the emptiness of their own case. In his new book, <i>A Dream Deferred: The Second Betrayal of Black Freedom in America</i>, Steele writes, "the top quartile of black American students—often from two-parent families with six-figure incomes and private school educations—is frequently not competitive with whites and Asians from lower quartiles. But it is precisely this top quartile of black students that has been most aggressively pursued for the last thirty years with affirmative action preferences." Affirmative action, in his view, is "the institutionalization of low expectations." </font></p>
<p> </p>
<p> </p>
<p><font color="black"><b><font size="2">B</font></b>ut some people are always going to be in the bottom quarter of the class, and their chances of moving into prestigious jobs by virtue of their college's status and connections are just as great as their classmates'. While Steele may be right to worry that affirmative action casts a shadow on the achievements of the thousands of blacks who would have gotten into these colleges even without any race preference, the C&amp;B data for at least the most selective (private) institutions appear to show no great concern on the part of blacks, nor any widespread resentment among whites who were rejected. Bowen and Bok also provide a long string of quotations from blacks and whites about the benefits, as they see them, of being exposed to students from other racial backgrounds. But those arguments, coming from a very selective segment of the population, seem a bit contrived. One of the ways you demonstrate your high status is by not showing your racial resentment. </font></p>
<p><font color="black">Still, guilt may not be the most important impulse here. At a time when society itself is becoming increasingly diverse, race-based affirmative action—whether in admissions offices, government jobs, or private business—is not so much an effort to reclaim moral authority as to reinforce institutional legitimacy. To paraphrase Bowen and Bok, it's not just that the affirmative action minority students need the elite colleges; it's also that the elite colleges need the minority students. More important, perhaps, if one harkens back to an older view of the mission of the elite institutions, it's rather hard to determine to what extent those institutions created the establishment, and to what extent they merely served to train and polish those who were already destined for it. In an age that badly needs minority leadership, the kind of affirmative action practiced at Yale or Princeton is not all that different. </font></p>
<p> </p>
<p><font color="black"><b>Cream of the Crop</b> </font></p>
<p><font color="black">The real difficulties—both in the use of this study and for race preferences generally—lie elsewhere. Preferences notwithstanding, more than 75 percent of the black students entering the C&amp;B schools in 1989 had entering SAT scores above 1100, and nearly half scored over 1200, which puts them at the very top of the pool of black test takers. They are already winners. Most black high school students never get near those numbers, assuming they even take the SAT. And while the black-white gap in reading has shrunk by half in the last generation, and the math gap by a third (as measured by the National Assessment of Educational Progress), the differences are still substantial. [See Christopher Jencks and Meredith Phillips, "America's Next Ach ieve ment Test," <i>TAP</i>, Sept ember-October 1998.] The C&amp;B data, in short, have little relevance for the vast majority of institutions and black students. </font></p>
<p><font color="black">Even within the nation's selective institutions, estimated to be about 20 to 30 percent of all colleges and universities, a great deal of what is labeled as affirmative action is very different from the practices Bowen and Bok have in mind. At places like Berkeley, where the mean score of entering students in 1989 was 1176, and the University of Texas Law School, where academic race preferences were eliminated after coming under the most intense attacks, the admissions decisions were not made, as in the Ivy League, on the basis of a candidate's whole record and background. Instead, they were based largely on a numerical formula that included little more than grades, test scores, and race. Under that formula, blacks and Hispanics were admitted with substantially lower scores than other applicants. In Texas for a time, the law school maintained an entirely separate admissions process for minority applicants. Those systems have little in common with Bowen's and Bok's broad definition of merit as something that goes far beyond grades, test scores, or even the hard work that many students do to get them. And thus they were always hard to defend. </font></p>
<p><font color="black">What made the task even harder was the lack of candor from public institutions that pretended that they weren't really giving preferences, or that they were using them only in the most marginal ways. When it was finally disclosed how large the black-white gaps sometimes were, advocates defended preferences as ways of creating opportunities for individual minority students—most of whom were well enough qualified to go elsewhere. What they failed to do was proclaim the minority students' much greater importance to the institution and the larger society—the fact that "merit," as Bowen and Bok would have it, should itself be conditioned by broader institutional objectives, "permitting students to benefit from diversity on campus, and addressing long-term societal needs." </font></p>
<p><font color="black">Unfortunately, those broader objectives are far easier to maintain in private institutions than they are in the small circle of public institutions—Berkeley, UCLA, the University of Texas Law School, and a couple of others—where admission is highly competitive and where race preferences have therefore been a major issue. Even at the University of Michigan, which is part of the C&amp;B survey and is now being sued for reverse discrimination in its admissions practices, admission seems to rest not on an evaluation of each candidate's complete record, but on a formula that automatically gives a large edge to Hispanics, blacks, and American Indians. The university—to quote the complaint in one of the suits—does not "merely use race as a 'plus' factor or as one of many factors to attain a diverse student body. Rather, race was one of the predominant factors . . . used for determining admission." And contrary to the authors' conclusions that affirmative action does not breed widespread resentment but rather fosters understanding and integration, Michigan's own survey, as reported recently in the <i>Chronicle of Higher Education</i>, showed that two-thirds of its white students agreed that "students of color are given advantages that discriminate against other students." </font></p>
<p> </p>
<p> </p>
<p><font color="black"><b><font size="2">N</font></b>one of this is surprising. In part the public universities just don't have the resources to read every word in every applicant's folder, in every essay and letter of recommendation. In part they face intense political pressures for "fairness" which make it hard to maintain any selection process that seems to depend very much on subjective judgments. The public universities operate in a very different social and political environment, no matter how respected their academic programs are. In Texas, after the Fifth Circuit Court of Appeals not only prohibited race preferences but declared the <i>Bakke</i> decision a dead letter, the legislature adopted a system requiring the university to admit the top 10 percent of the graduates of every Texas high school. In California, when the regents abolished race preferences in the summer of 1995, they decreed that the University of California (in the name of "merit") had to admit at least 60 percent of applicants strictly on the basis of grades and test scores. In both cases, that was tantamount to replacing one arbitrary formula with another. </font></p>
<p><font color="black">Not surprisingly, Bowen and Bok don't think much of the Texas alternative. While it may increase the number of minority admissions from de facto segregated schools, the chances of admitting students who are incapable of the work are far greater, even as the chances of admission for able minority students from academically tough schools decline. Nor do the authors align themselves with the left-wing critics who argue that the SAT is biased against minorities and should be abandoned altogether. On the contrary, they point out that the SAT, for unknown reasons, actually overpredicts how well blacks do in the C&amp;B institutions—or to put it another way, blacks, for reasons still not clear, perform less well in college than the test predicts. Nor, again, do Bowen and Bok think much of Richard Kahlenberg's thesis that "class-based affirmative action"—choices based on low-income or other measures of socioeconomic status—can be used as surrogates for race, since there are still many more poor whites—or, in places like California, poor Asians—than poor blacks. In fact, as they point out, most of the blacks who make it into the C&amp;B institutions are not the sons and daughters of poor people; they are, for the most part, as upper-middle-class as everyone else. With rare exceptions, the Ivy League has never been a launching pad for the poor. </font></p>
<p> </p>
<p><font color="black"><b>Outside the Ivory Tower </b></font></p>
<p><font color="black">But neither is the Bowen-Bok formula a paradigm for anything in the larger world. While the Bowen-Bok data, which included only four public institutions in the 28-institution sample, may become part of a defense against the judicial demolition of <i>Bakke</i>, they won't be very useful against state-level anti-preference ballot initiatives like Proposition 209 in California and Proposition 200 in Washington State. They may not even be very effective in fending off suits against institutions like the University of Michigan, which will have a hard time showing that it fits the C&amp;B model. Applying Bowen-Bok data becomes particularly difficult in highly diverse states like California, where it's not simply a question of admitting a few more blacks—and thus reducing the percentage of whites ever so slightly—but rather one of accommodating claimants from a highly diverse spectrum of ethnic groups, particularly Asians and His panics, both of whom have been victims of widespread discrimination in the recent past. If blacks are admitted to Berkeley or UCLA at demonstrably higher rates than are Chinese applicants with higher scores, even the most eloquent defense of an institution's larger social obligation may sound like a hollow rationale for yet another form of Asian exclusion. </font></p>
<p><font color="black">That's not to deny that the price of the race-blind equity that follows the abolition of race preferences in California and Texas may be steep, at least in the short run—on the one hand a sharp decline, already evident in California, in minority admissions; on the other hand, mounting political pressures to lower the threshold for everybody. One of the backers of Proposition 209, a Berkeley law professor named John Yoo, later told the<i> New Yorker</i>'s Jeffrey Rosen that he didn't realize until after the vote "that affirmative action, as it was applied by the schools, allowed you to have some racial diversity and at the same time maintain intellectual standards for the majority of your institutions." Institu tions that are legally forced to ignore race in admissions decisions will, inevitably, either search for superficially color-blind fudges or adopt lower standards for everybody to avoid resegregation. Boalt has already dropped the practice of adjusting its applicants' college GPAs according to the presumed academic difficulty of the schools they attended. Hence the Boalt admissions process rates a B from Harvard or Rice as equivalent to a B from Chico State or Howard. And as a result, the number of minority students Boalt admits, which was down to virtually zero in the first year after race preferences were prohibited, has begun to climb again. </font></p>
<p><font color="black">All of which leaves selective public institutions with a singular dilemma. Bowen and Bok make a powerful case for the consideration of race in the sophisticated admissions processes of the elite private institutions. But it's not a process that most tax-supported institutions can use. Thirty years ago, University of California President Clark Kerr proudly marked the moment when Berkeley's graduate programs were rated as being on a par with, and sometimes above, Harvard's. But as the affirmative action story makes clear, no tax-supported university, regardless of the prestige of its faculty and research programs, can ever behave like an elite private university. What the Ivy Leagues do may be both successful and admirable, but it rarely applies to the rest of America. </font></p>
<!-- dhandler for print articles --><p></p>
</div></div></div>Mon, 10 Dec 2001 22:44:56 +0000140945 at http://prospect.orgPeter SchragWhen Preferences Disappearhttp://prospect.org/article/when-preferences-disappear
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p><font class="nonprinting"><font size="+2">B</font>y now, there can no longer be much doubt that the days of formal race preference programs, at least in the public sector, are numbered. On November 5, California voters did what everyone had long expected, approving Proposition 209, the California Civil Rights Initiative, which prohibits any consideration of race or gender in California public education, employment, and contracting. The vote was narrower than had once been expected (and might have been narrower still had CCRI opponents not used an inflammatory and offensive television commercial, complete with a burning KKK cross, in the last weeks of the campaign). But, with a margin of 54 percent to 46 percent, it was decisive enough. </font></p>
<p><font class="nonprinting">CCRI is only the most recent assault on affirmative action measures. And while Proposition 209 still faces legal challenges in federal court that may take years to resolve fully, the drift is clear. In the summer of 1995, the regents of the University of California, under heavy pressure from a governor with overweening presidential ambitions, voted to end race and gender preferences in all UC admissions and employment. In March 1996, in <i>Hopwood v. Texas</i>, a three-judge panel of the U.S. Fifth Circuit Court of Appeals struck down practices giving preferences to blacks and Latinos in admissions to the University of Texas Law School. In issuing its decision, the Fifth Circuit Court perpetrated an unprecedented act of judicial chutzpah, dismissing the Supreme Court's 1978 <i>Bakke </i>decision, which had allowed consideration of race as one "plus factor" in university admissions, as if it had never really existed. Justice Lewis Powell, the Fifth Circuit panel held, had been alone in articulating the <i>Bakke</i> standard in the Court's divided decision; subsequent high court decisions had conspicuously ignored it; and "it is not binding precedent on this issue." In response to the Fifth Circuit decision, Colorado abandoned its race-based scholarship program, and a number of other state university systems began reexamining their use of race preferences in admissions. </font></p>
<p><font class="nonprinting">In the meantime, in a series of increasingly emphatic decisions, the U.S. Supreme Court has cast growing doubt on its willingness to uphold any race-based policy other than those narrowly tailored to remedy a specific instance of prior discrimination. It has severely restricted racial set-asides in federal contracting (<i>Adarand v. Pena</i>) and racial gerrymandering in drawing congressional and legislative districts (<i>Shaw v. Hunt</i>). The high court also declined to review a Fourth Circuit decision (<i>Kirwin v. Podberesky</i>) striking down a University of Maryland scholarship program for African Americans as a denial of equal protection, and it deferred review of the <i>Hopwood </i>decision, even though it left federal law confused and inconsistent in a highly volatile arena—and even though the Fifth Circuit decision was a direct challenge to the high court's own <i>Bakke </i>precedent. If one of its conservatives retires and is replaced by a Clinton appointee, the Court may respond to these challenges. But for the moment, it appears likely that the Court declined review because the liberal-to-moderate justices—Breyer, Ginsburg, Souter, Stevens—on this closely divided court are not confident they have the fifth vote necessary to overturn lower court rejections of affirmative action. </font></p>
<p><font class="nonprinting">It's easy enough to dismiss any one of these developments as limited—by geography or subject or political scope or by the cynicism of the political act (and cynical was what California Governor Pete Wilson's exploitation of affirmative action certainly was). In his call to "mend it but don't end it," President Clinton vowed to protect the principle of affirmative action, and even Republican governors like George Pataki in New York, Christine Todd Whitman in New Jersey, and George Bush, Jr., in Texas, along with Jack Kemp in the years before the 1996 election, defended affirmative action programs. Still the trend is clear enough, whether one looks at the courts, which once helped advance affirmative action, at the opinion polls, or at the demographic complexities in states like California, where the growing number of minorities of all shades make it increasingly difficult to favor one group without explicitly discriminating against another. </font></p>
<p><font class="nonprinting">It's also revealing that despite the surprising failure of people like Pete Wilson and Newt Gingrich to make race preferences a hot-button political issue, which is certainly what they had been hoping to do last year, there was no significant counterforce defending race-based preferences, either among the nation's leaders or the public at large. The opponents of Proposition 209 in California, fearing a low turnout of minority voters despite the upsurge of newly naturalized Latino citizens, tried to base their campaign not on the measure's impact on minorities but on what they warned would be the damage it would do to women. But that strategy, too, fell flat: On November 5, women split almost evenly on the issue, while men supported it overwhelmingly. </font></p>
<p> </p>
<hr /><h3><font class="nonprinting">RACE AND MERIT</font></h3>
<p><font class="nonprinting">And yet, if the winding down of race-based affirmative action represents one declaration of social priorities—even, perhaps, the end of an era of public policy—it runs counter to another developing set of priorities, particularly in higher education, and raises a host of new questions about what, other than test scores and grades, should replace race and ethnicity in choosing candidates for admission to selective public institutions. Even as state policymakers and voters appear to be asking higher education to become more meritocratic in its admissions and hiring and as the courts increasingly insist on strict scrutiny of race-based policies in all public-sector activities, the trend in much of higher education seems to be toward broader, less objective—and sometimes more squishy—standards. </font></p>
<p><font class="nonprinting">The most obvious examples of this trend are the attacks, often backed by the Department of Education's Office of Civil Rights, on objective testing—and in particular the attacks on the SAT and PSAT (which is used as one of the primary screens for National Merit Scholars)—as biased against women and minorities. In its effort to deflect the attacks and to raise the scores of women, the College Board, which designs and runs these testing programs, has already revised the PSAT by doubling the weight given to the verbal sections on the test (thereby reducing the weight of the math portion, on which men have consistently done better), and, in an agreement with OCR, will now revise it further to include items designed to test the writing skills of applicants, on which women generally do better. (College Board officials say they were going to institute the writing items anyway, but they don't deny that the timing of the announcement was advanced by federal pressure.) These revisions of standardized testing may, in themselves, be welcome reforms, but coming, as they do, in response to government pressure to make the scores of women match those of men, it suggests that the battle over affirmative action is far from over. It is merely being carried on under other names on other fronts. In the meantime, a growing number of institutions, including the whole Maryland system, are de-emphasizing the use of the SAT in admissions, or vowing to abandon it altogether. </font></p>
<hr size="1" /><center><font class="nonprinting"><a href="/subscribe/"><img alt="Subscribe to The American Prospect" border="0" src="/tapads/mini_subscribe.gif" /></a> </font></center><br /><hr size="1" /><h3><font class="nonprinting">FROM RACE TO CLASS?</font></h3>
<p><font class="nonprinting">The alternatives most favored by politicians and other critics of race-based affirmative action are "outreach" and class-based preferences for those who have suffered economic disadvantage. Many institutions have been employing this approach for years, either by using straight income or welfare criteria or through programs that give preferences to children from families where no one had ever gone to college. Class-based affirmative action is part of the new regents formula in California—which, in a strange bow to current fads of victimology, also calls for extra consideration for those who have lived in "an abusive or otherwise dysfunctional home." (The most thorough treatment of the idea of class-based affirmative action is probably Richard D. Kahlenberg's recent book, <i>The Remedy: Class, Race, and Affirmative Action.</i>) </font></p>
<p><font class="nonprinting">The problem is that in places like California, replacing race with class doesn't do much to maintain, much less increase, the percentage of blacks and Latinos on campus. It will merely bring in more poor Asians—Chinese, Vietnamese, Koreans—to replace the middle-class blacks and Hispanics who will be lost (most of them to private institutions) when race preferences end this year. There has been a florid array of proposals for programs that are not explicitly aimed at blacks and Latinos but that would effectively give them preferential treatment anyway. For example, the University of California at San Diego is considering a plan that would give extra credit to graduates of the state's worst high schools. But admission to the nation's handful of highly selective public institutions—the University of Texas Law School, for example, or Berkeley's Boalt Law School, or any undergraduate program at Berkeley or UCLA—is so competitive that, as long as other criteria are not changed, no device other than overt race preferences can achieve the ethnic diversity that the institutions would like. In this process there is, as Dennis Galligani, UC's assistant vice president for admissions, put it, "no surrogate for ethnicity." </font></p>
<p><font class="nonprinting">For different reasons, the same is even more true in civil service employment and public-sector contracting. By definition, most of the people who apply for jobs as truck drivers, firefighters, and meter readers are already working class. More to the point, there is not much justification for class preferences in contracting or in hiring for civil service jobs: The only real rationale for establishing an ethnically diverse public-sector workforce is to increase its effectiveness and legitimacy. Sending a poor white boy to patrol Watts or Harlem is not the same as sending a black. A contractor working a street job in a big city with only white heavy-equipment operators will not enhance the social morale of the minority community even if every backhoe and tractor is driven by a poor boy. Having only white judges in courtrooms dealing mainly with minority criminal defendants is, as we have so painfully learned, no way to persuade the community that the legal system is fair, even if some of the whites come from the wrong side of the tracks. </font></p>
<p><font class="nonprinting"><font size="+2">T</font>he bigger question that follows—as much in hiring for the police department or the road crew as in choosing candidates for college or graduate school—is whether, race preferences aside, the old criteria really made sense in the first place. What, beyond minimal competence to meet the technical requirements of the task, should be required? Some positions, it is true, clearly require more formally meritocratic standards than others; but for most positions, this question is a valid one. In some respects, race preferences have always been an inadequate way of compensating for the larger shortcomings that large public systems use in selecting applicants: How well does the Law School Admissions Test or the Medical College Admissions Test predict who will be a good lawyer or a good doctor? Unlike Amherst or Princeton, where admissions officers professedly pore over applicants' folders bulging with their letters of recommendation, autobiographical essays, and descriptions of extracurricular activities (from the chess club to the volunteer summer with African refugees), admissions offices at places like the University of Texas Law School or the University of California proceed almost entirely by numbers. In the 1970s, when it became plain that grade point averages and SAT scores left the entering classes at Berkeley and UCLA embarrassingly white and Asian in a surrounding society that was increasingly Latino, the system (to oversimplify this history only slightly) simply added another set of numbers to raise the percentage of what it calls URMs (underrepresented minorities). Anything that's not quantifiable is more or less ignored. (UC does ask for essays from applicants but rarely reads them.) Which is to say that, with some glaring exceptions (friends of politicians, children of big donors) the admission system at most large public universities has always been more like a civil service system than like the admission procedures (themselves highly imperfect) that the more selective private colleges ostensibly use. </font></p>
<p> </p>
<hr /><h3><font class="nonprinting">TOWARD RELEVANT STANDARDS</font></h3>
<p><font class="nonprinting">The question now is whether these numbers-based admission systems will be rationally reexamined, or whether most of the gatekeepers will simply look for new labels to put on the old dodges and keep the number system more or less intact. In the higher reaches of academic and professional selectivity, the selection criteria may be relatively self-evident, but at the lower levels, they're not easy to agree upon, especially in view of the great American ambivalence between merit and inclusion. </font></p>
<p><font class="nonprinting">What should be easy to agree upon is that there is room for reform in admissions practices in most of higher education: Placing more emphasis on demonstrated performance instead of seat time, credits earned, grade point average, and test scores would be a good place to start. There is even more room in public contracting, where old-boy networks still dominate, and in blue-collar civil service, where high scores on a paper-and-pencil test may be of far less relevance than good judgment, honesty, and a host of other intangibles. That those qualities are hard to measure hardly justifies abandoning them as selection criteria. Making selection and promotion criteria really relevant to the job might do more to open jobs for minorities and women in civil service—and indeed has already done so in the many instances where artificial criteria have been scrapped (such as in the cases of irrelevant height and weight thresholds for candidates for firefighters' jobs; unnecessary paper-and-pencil tests for laborers in public utility jobs; and artificial barriers to women in a variety of combat and combat-support roles in the military). Striking down more of these barriers and better aligning entrance criteria with the jobs they select for are likely to do more for diversity than all the overt race and gender preferences in the world. One of the reasons that race-based preferences are so vehemently defended is that few minorities believe that genuine equal opportunity, the other half of the race-blind promise, will ever really be provided. </font></p>
<p><font class="nonprinting">Still, the gradual rollback of race preferences provides opportunities to create more relevant standards that are long overdue. Those opportunities go beyond the long litany of arguments about fairness and racism that have been made in the course of the debate over affirmative action. What it surely will not do is end the fight between the meritocrats and the inclusivists; in America that fight is almost as old as the Republic, and it will continue. </font></p>
<p><!-- dhandler for print articles --></p>
</div></div></div>Mon, 10 Dec 2001 22:44:56 +0000141177 at http://prospect.orgPeter Schrag